682 SUPREME COURT REPORTS ANNOTATED
—Consequently, we
People us. Echegaray
G.R. No. 117472. February 7, 1997.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO
ECHEGARAY y PILO, accused-appellant.
Remedial Law; Appeal; Matters neither alleged in the pleadings nor raised
during the proceedings below cannot be ventilated for the first time on appeal before
the Supreme Court.—It is a rudimentary principle of law that matters neither
alleged in the pleadings nor raised during the proceedings below cannot be
ventilated for the first time on appeal before the Supreme Court. Moreover, as we
have stated in our Resolution in Manila Bay Club Corporation v. Court of
Appeals: “If well-recognized jurisprudence precludes raising an issue only for the
first time on appeal proper, with more reason should such issue be disallowed or
disregarded when initially raised only in a motion for reconsideration of the
decision of the appellate court.”
Criminal Procedure; Affidavits; An affidavit of desistance is merely an
additional ground to buttress the accused’s defenses not the sole consideration that
can result in acquittal.—It must be stressed that during the trial proceedings of the
rape case against the ac-
_______________
* EN BANC.
683
VOL. 267, FEBRUARY 7, 1997 683
People vs. Echegaray
cused-appellant, it appeared that despite the admission made by the victim
herself in open court that she had signed an Affidavit of Desistance, she,
nevertheless, “strongly pointed out that she is not withdrawing the charge against
the accused because the latter might do the same sexual assaults to other women.”
Thus, this is one occasion where an affidavit of desistance must be regarded with
disfavor inasmuch as the victim, in her tender age, manifested in court that she
was pursuing the rape charges against the accusedappellant. We have explained
in the case of People v. Gerry Ballabare, that: “As pointed out in People v. Lim (190
SCRA 706 [1990], which is also cited by the accused-appellant, an affidavit of
desistance is merely an additional ground to buttress the accused’s defenses, not
the sole consideration that can result in acquittal. There must be other
circumstances which, when coupled with the retraction or desistance, create doubts
as to the truth of the testimony given by the witnesses at the trial and accepted by
the judge.”
Constitutional Law; Death Penalty; Our courts are not the fora for a
protracted debate on the morality or propriety of the death sentence where the law
CRIMINAL LAW | PENALTIES
itself provides therefor in specific and welldefined criminal acts.
have time and again emphasized that our courts are not the fora for a protracted
debate on the morality or propriety of the death sentence where the law itself
provides therefor in specific and well-defined criminal acts. Thus we had ruled in
the 1951 case of Limaco that: “x x x there are quite a number of people who honestly
believe that the supreme penalty is either morally wrong or unwise or ineffective.
However, as long as that penalty remains in the statute books, and as long as our
criminal law provides for its imposition in certain cases, it is the duty of judicial
officers to respect and apply the law regardless of their private opinions.” and this
we have reiterated in the 1995 case of People v. Veneracion.
Same; Same; Congress has the power to re-impose the death penalty for
compelling reasons involving heinous crimes.—Article III, Section 19(1) of the 1987
Constitution plainly vests in Congress the power to re-impose the death penalty
“for compelling reasons involving heinous crimes.” This power is not subsumed in
the plenary legislative power of Congress, for it is subject to a clear showing of
“compelling reasons involving heinous crimes.” The constitutional exercise of this
limited power to re-impose the death penalty entails: (1) that Congress define or
describe what is meant by heinous crimes; (2) that Congress specify and penalize
by death, only crimes
684
684 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
that qualify as heinous in accordance with the definition or description set in
the death penalty bill and/or designate crimes punishable by reclusion perpetua to
death in which latter case, death can only be imposed upon the attendance of
circumstances duly proven in court that characterize the crime to be heinous in
accordance with the definition or description set in the death penalty bill; and (3)
that Congress, in enacting this death penalty bill be singularly motivated by
“compelling reasons involving heinous crimes.”
Same; Same; Definition of Heinous Crimes.—In the second whereas clause of
the preamble of R.A. No. 7659, we find the definition or description of heinous
crimes. Said clause provides that: “x x x crimes punishable by death under this Act
are heinous for being grievous, odious and hateful offenses and which, by reason of
their inherent or manifest wickedness, viciousness, atrocity and perversity are
repugnant and outrageous to the common standards and norms of decency and
morality in a just, civilized and ordered society.” Justice Santiago Kapunan, in his
dissenting opinion in People v. Alicando, traced the etymological root of the word
“heinous” to the Early Spartans’ word, “haineus,” meaning, hateful and
abominable, which, in turn, was from the Greek prefix “haton,” denoting acts so
hatefully or shockingly evil.
Same; Same; R.A. No. 7659; Insofar as the element of heinousness is
concerned, R.A. No. 7659 has correctly identified crimes warranting the mandatory
penalty of death.—We have no doubt, therefore, that insofar as the element of
heinousness is concerned, R.A. No. 7659 has correctly identified crimes warranting
the mandatory penalty of death. As to the other crimes in R.A. No. 7659 punished
P a g e 1 | 279
by reclusion perpetua to death, they are admittingly no less abominable than those death penalty by a white jury that is given the unconditional discretion to
mandatorily penalized by death. The proper time to determine their heinousness determine whether or not to impose the death
in contemplation of law, is when on automatic review, we are called to pass on a 686
death sentence involving crimes punishable by reclusion perpetua to death under
R.A. No. 7659, with the trial court meting out the death sentence in exercise of
judicial discretion, This is not to say, however, that the aggravating circumstances 686 SUPREME COURT REPORTS ANNOTATED
under the Revised Penal Code need be additionally alleged as establishing the
People vs. Echegaray
heinousness of the crime for the trial court to validly impose the death penalty in
penalty. In fact, the long road of the American abolitionist movement leading
the crimes under R.A. No. 7659 which are punished with the flexible penalty of
to the landmark case of Furman was trekked by American civil rights advocates
reclusion perpetua to death.
zealously fighting against racial discrimination. x x x Furman, thus, did not outlaw
685
the death penalty because it was cruel and unusual per se. While the U.S. Supreme
Court nullified all discretionary death penalty statutes in Furman, it did so
VOL. 267, FEBRUARY 7, 1997 685
because the discretion which these statutes vested in the trial-judges and
People vs. Echegaray sentencing juries was uncontrolled and without any parameters, guidelines, or
Same; Same; Same; R.A. No. 7659 provides the test and yardstick for the standards intended to lessen, if not altogether eliminate, the intervention of
determination of the legal situation warranting the imposition of the supreme personal biases, prejudices and discriminatory acts on the part of the trial judges
penalty of death.—In the first place, the 1987 Constitution did not amend or repeal and sentencing juries.
the provisions of the Revised Penal Code relating to aggravating circumstances.
Secondly, R.A. No, 7659, while it specifies circumstances that generally qualify a SEPARATE OPINION:
crime provided therein to be punished by the maximum penalty of death, neither
amends nor repeals the aggravating circumstances under the Revised Penal Code. Remedial Law; Appeal; Same; Same; Determination of when to prescribe the
Thus, construing R.A. No, 7659 in pari materia with the Revised Penal Code, death death penalty now lies with the sound discretion of the law-making authority, the
may be imposed when: (1) aggravating circumstances attend the commission of the Congress of the Philippines subject to the conditions that the fundamental law has
crime as to make operative the provision of the Revised Penal Code regarding the set forth.—The determination of when to prescribe the death penalty now lies with
imposition of the maximum penalty; and (2) other circumstances attend the the sound discretion of the law-making authority, the Congress of the Philippines,
commission of the crime which indubitably characterize the same as heinous in subject to the conditions that the fundamental law has set forth; viz: (1) That there
contemplation of R.A. No. 7659 that justify the imposition of death, albeit the must be compelling reasons to justify the imposition of the death penalty; and (2)
imposable penalty is reclusion perpetua to death. Without difficulty, we That the capital offense must involve a heinous crime.
understand the rationale for the guided discretion granted in the trial court to
cognize circumstances that characterize the commission of the crime as heinous. SEPARATE OPINION:
Certainly there is an infinity of circumstances that may attend the commission of
a crime to the same extent that there is no telling the evil that man is capable of.
Remedial Law; Appeal; The automatic commutation or reduction to reclusion
The legislature cannot and need not foresee and inscribe in law each and every
perpetua of any death penalty extant as of the effectivity of the Constitution clearly
loathsome act man is capable of. It is sufficient thus that R.A. No. 7659 provides
recognizes that while the conviction of an accused for a capital crime remains death
the test and yardstick for the determination of the legal situation warranting the
as a penalty ceased to exist in our penal laws and thus may no longer be carried
imposition of the supreme penalty of death. Needless to say, we are not unaware of
out.—Section 19, Article III of the 1987 Constitution provides: “Sec. 19. (1)
the ever existing danger of abuse of discretion on the part of the trial court in
Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment
meting out the death sentence. Precisely to reduce to nil the possibility of executing
inflicted. Neither shall death penalty be imposed, unless for compelling
an innocent man or one criminal but not heinously criminal, R.A. No. 7659 is
reasons involving heinous crimes, the Congress hereafter provides for it. Any death
replete with both procedural and substantive safeguards that ensure only the
penalty already imposed shall be reduced to reclusion perpetua.” (Italics supplied)
correct application of the mandate of R.A. No. 7659.
The second and third sentences of the above provision are new and had not been
Same; Same; Same; Furman did not outlaw the death penalty because it was
written in the 1935, 1973 or even in the 1986 “Freedom Constitution.” They
cruel and unusual per se.—The issue in Furman was not so much death penalty
proscribe the imposition of the death penalty “unless for compelling reasons
itself but the arbitrariness pervading the procedures by which the death penalty
involving heinous crimes, Congress provides for
was imposed on the accused by the sentencing jury. Thus, the defense theory
687
in Furman centered not so much on the nature of the death penalty as a criminal
sanction but on the discrimination against the black accused who is meted out the
CRIMINAL LAW | PENALTIES P a g e 2 | 279
 VOL. 267, FEBRUARY 7, 1997 687
People vs. Echegaray
it,” and reduced “any death penalty already imposed” to reclusion
perpetua. The provision has both a prospective aspect (it bars the future imposition
of the penalty) and a retroactive one (it reduces imposed capital sentences to the
lesser penalty of imprisonment). This two-fold aspect is significant. It stresses that
the Constitution did not merely suspend the imposition of the death penalty, but
in fact completely abolished it from the statute books. The automatic commutation
or reduction to reclusion perpetua of any death penalty extant as of the effectivity
of the Constitution clearly recognizes that, while the conviction of an accused for a
capital crime remains, death as a penalty ceased to exist in our penal laws and thus
may no longer be carried out. This is the clear intent of the framers of our
Constitution.
Same; Same; R.A. No. 7659 did not change the nature or the elements of the
crimes stated in the Penal Code and in the special laws.—But RA 7659 did not
change the nature or the elements of the crimes stated in the Penal Code and in
the special laws. It merely made the penalty more severe. Neither did its provisions
(other than the preamble, which was cast in general terms) discuss or justify the
reasons for the more severe sanction, either collectively for all the offenses or
individually for each of them. Generally, it merely reinstated the concept of and the
method by .which the death penalty had been imposed until February 2, 1987,
when the Constitution took effect as follows: (1) a person is convicted of a capital
offense; and (2) the commission of which was accompanied by aggravating
circumstances not outweighed by mitigating circumstances.
Same; Same; R.A. 7659 merely amended certain laws to prescribe death as the
maximum imposable penalty once the court appreciates the presence or absence of
aggravating circumstances.—As already alluded to, RA 7659 merely amended
certain laws to prescribe death as the maximum imposable penalty once the court
appreciates the presence or absence of aggravating circumstances. There’s nothing
really new that Congress did which it could not have otherwise done had such
provision not been included in our fundamental law. In other words, it just
reinstated capital punishment for crimes which were already punishable with
death prior to the effectivity of the 1987 Constitution. With the possible exception
of plunder and qualified bribery, no new crimes were introduced by RA 7659. The
offenses punished by death under said law were already so punishable by the
Revised Penal Code and by special laws. In short, Sec. 19, Article III of the
Constitution did not have any impact
688
688 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
upon the legislative action. It was effectively ignored by Congress in enacting
the capital punishment law.
MOTION FOR RECONSIDERATION of a decision of the Supreme Court.
CRIMINAL LAW | PENALTIES
The facts are stated in the resolution of the Court.
The Solicitor General for plaintiff-appellee.
Free Legal Assistance Group, Anti-Death Penalty Task Force for accused-
appellant.
RESOLUTION
PER CURIAM:
On June 25, 1996, we rendered our decision in the instant case affirming the
conviction of the accused-appellant for the crime of raping his ten-year old
daughter. The crime having been committed sometime in April, 1994, during which
time Republic Act (R.A.) No. 7659, commonly known as the Death Penalty Law,
was already in effect, accused-appellant was inevitably meted out the supreme
penalty of death.
On July 9, 1996, the accused-appellant timely filed a Motion for
Reconsideration which focused on the sinister motive of the victim’s grandmother
that precipitated the filing of the alleged false accusation of rape against the
accused. We find no substantial arguments on the said motion that can disturb our
verdict.
On August 6, 1996, accused-appellant discharged the defense counsel, Atty.
Julian R. Vitug, and retained the services of the Anti-Death Penalty Task Force of
the Free Legal Assistance Group of the Philippines (FLAG).
On August 23, 1996, we received the Supplemental Motion for Reconsideration
prepared by the FLAG on behalf of accused-appellant. The motion raises the
following grounds for the reversal of the death sentence;
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People vs. Echegaray
1. "[1]Accused-appellant should not have been prosecuted since the pardon
by the offended party and her mother before the filing of the complaint
acted as a bar to his criminal prosecution.
2. [2]The lack of a definite allegation of the date of the commission of the
offense in the Complaint and throughout trial prevented the accused-
appellant from preparing an adequate defense.
3. [3]The guilt of the accused was not proved beyond a reasonable doubt.
4. [4]The Honorable Court erred in finding that the accusedappellant was
the father or stepfather of the complainant and in affirming the sentence
of death against him on this basis.
5. [5]The trial court denied the accused-appellant of due process and
manifested bias in the conduct of the trial.
6. [6]The accused-appellant was denied his constitutional right to effective
assistance of counsel and to due process, due to the incompetence of
counsel.
7. [7]R.A. [No.] 7659, reimposing the death penalty is unconstitutional per
se:
P a g e 3 | 279
 1. a.For crimes where no death results from the offense, the death penalty is
a severe and excessive penalty in violation of Article III, Sec. 19(1) of the
1987 Constitution.
2. b.The death penalty is cruel and unusual punishment in violation of the
Article III, Sec. 11 of the 1987 Constitution.”
In sum, the Supplemental Motion for Reconsideration raises three (3) main issues:
(1) mixed factual and legal matters relating to the trial proceedings and findings;
(2) alleged incompetence of accused-appellant’s former counsel; and (3) purely legal
question of the constitutionality of R.A. No. 7659.
I 2. b)the vagueness attributed to the date of the commission of the offense in
It is a rudimentary principle of law that matters neither alleged in the pleadings
nor raised during the proceedings below cannot be ventilated for the first time on
appeal before the Supreme Court. Moreover, as we have stated in our Resolution
in Manila Bay Club Corporation v. Court of Appeals:1
________________
1 249 SCRA 303, 307–308.
690
690 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
“If well-recognized jurisprudence precludes raising an issue only for the first time
on appeal proper, with more reason should such issue be disallowed or disregarded
when initially raised only in a motion for reconsideration of the decision of the
appellate court.”
It is to be remembered that during the proceedings of the rape case against the
accused-appellant before the sala of then presiding judge Maximiano C. Asuncion,
the defense attempted to prove that:
1. a)the rape case was motivated by greed, hence, a mere concoction of the
alleged victim’s maternal grandmother;
2. b)the accused is not the real father of the complainant;
3. c)the size of the penis of the accused cannot have possibly penetrated the
alleged victim’s private part; and
4. d)the accused was in Parañaque during the time of the alleged rape.
In his Brief before us when the rape case was elevated for automatic review, the
accused-appellant reiterated as grounds for exculpation:
1. a)the ill-motive of the victim’s maternal grandmother in prompting her
grandchild to file the rape case;
CRIMINAL LAW | PENALTIES
2. b)the defense of denial relative to the size of his penis which could not have
caused the healed hymenal lacerations of the victim; and
3. c)the defense of alibi.
Thus, a second hard look at the issues raised by the new counsel of the accused-
appellant reveals that in their messianic appeal for a reversal of our judgment of
conviction, we are asked to consider for the first time, by way of a Supplemental
Motion for Reconsideration, the following matters:
1. a)the affidavit of desistance written by the victim which acted as a bar to
the criminal prosecution for rape against the accused-appellant;
the Complaint which deprived the accused-appellant from adequately
defending himself;
691
VOL. 267, FEBRUARY 7, 1997 691
People vs. Echegaray
1. c)the failure of this Court to clearly establish the qualifying circumstance
that placed the accused-appellant within the coverage of the Death
Penalty Law;
2. d)the denial of due process and the manifest bias exhibited by the trial
court during the trial of the rape case.
Apparently, after a careful scrutiny of the foregoing points for reconsideration, the
only legitimate issue that We can tackle relates to the Affidavit of Desistance which
touches on the lack of jurisdiction of the trial court to have proceeded with the
prosecution of the accused-appellant considering that the issue of jurisdiction over
the subject matter may be raised at any time, even during appeal.2
It must be stressed that during the trial proceedings of the rape case against
the accused-appellant, it appeared that despite the admission made by the victim
herself in open court that she had signed an Affidavit of Desistance, she,
nevertheless, “strongly pointed out that she is not withdrawing the charge against
the accused because the latter might do the same sexual assaults to other
women."3 Thus, this is one occasion where an affidavit of desistance must be
regarded with disfavor inasmuch as the victim, in her tender age, manifested in
court that she was pursuing the rape charges against the accused-appellant.
We have explained in the case of People v. Gerry Ballabare,4 that:
“As pointed out in People v. Lim (190 SCRA 706 [1990], which is also cited by the
accused-appellant, an affidavit of desistance is merely an additional ground to
buttress the accused’s defenses, not the sole consideration that can result in
acquittal. There must be other circumstances which, when coupled with the
retraction or
________________
P a g e 4 | 279
 2 See Amigo v. Court of Appeals, 253 SCRA 382, 390 [1996]; De Leon v. Court
of Appeals, 245 SCRA 166, 172 [1995].
3 RTC Decision, p. 3; Rollo, p. 19.
4 G.R. No. 108871 promulgated on November 19, 1996.
692
692 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
desistance, create doubts as to the truth of the testimony given by the witnesses at
the trial and accepted by the judge."5
In the case at bar, all that the accused-appellant offered as defenses mainly
consisted of denial and alibi which cannot outweigh the positive identification and
convincing testimonies given by the prosecution. Hence, the affidavit of desistance,
which the victim herself intended to disregard as earlier discussed, must have no
bearing on the criminal prosecution against the accused-appellant, particularly on
the trial court’s jurisdiction over the case.
II
The settled rule is that the client is bound by the negligence or mistakes of his
counsel.6 One of the recognized exceptions to this rule is gross incompetency in a
way that the defendant is highly prejudiced and prevented, in effect, from having
his day in court to defend himself.7
In the instant case, we believe that the former counsel of the accused-appellant
to whom the FLAG lawyers now impute incompetency had amply exercised the
required ordinary diligence or that reasonable decree of care and skill expected of
him relative to his client’s defense. As the rape case was being tried on the merits,
Atty. Vitug, from the time he was assigned to handle the case, dutifully attended
the hearings thereof. Moreover, he had seasonably submitted the
AccusedAppellant’s Brief and the Motion for Reconsideration of our June 25, 1996
Decision with extensive discussion in support of his line of defense. There is no
indication of gross incompetency that could have resulted from a failure to present
any
________________
People v. Pimentel, 118 SCRA 695 [1982]; citing People v. Manigbas, 109
5
Phil. 469 [1960].
6 Greenhills Airconditioning and Services, Inc. v. National Labor Relations
Commission, 245 SCRA 384, 389 [1995]; Arambulo v. Court of Appeals, 226 SCRA
589, 601 [1993]; Que v. Court of Appeals, 101 SCRA 13 [1980].
7 Suarez v. Court of Appeals, 220 SCRA 274, 279–280 [1993].
693
VOL. 267, FEBRUARY 7, 1997 693
People vs. Echegaray
CRIMINAL LAW | PENALTIES
argument or any witness to defend his client. Neither has he acted haphazardly in
the preparation of his case against the prosecution evidence. The main reason for
his failure to exculpate his client, the accused-appellant, is the overwhelming
evidence of the prosecution. The alleged errors committed by the previous counsel
as enumerated by the new counsel could not have overturned the judgment of
conviction against the accused-appellant.
III
Although its origins seem lost in obscurity, the imposition of death as punishment
for violation of law or custom, religious or secular, is an ancient practice. We do
know that our forefathers killed to avenge themselves and their kin and that
initially, the criminal law was used to compensate for a wrong done to a private
party or his family, not to punish in the name of the state.
The dawning of civilization brought with it both the increasing sensitization
throughout the later generations against past barbarity and the
institutionalization of state power under the rule of law. Today every man or
woman is both an individual person with inherent human rights recognized and
protected by the state and a citizen with the duty to serve the common weal and
defend and preserve society.
One of the indispensable powers of the state is the power to secure society
against threatened and actual evil. Pursuant to this, the legislative arm of
government enacts criminal laws that define and punish illegal acts that may be
committed by its own subjects, the executive agencies enforce these laws, and the
judiciary tries and sentences the criminals in accordance with these laws.
Although penologists, throughout history, have not stopped debating on the
causes of criminal behavior and the purposes of criminal punishment, our criminal
laws have been perceived as relatively stable and functional since the enforcement
of the Revised Penal Code on January 1, 1932, this notwithstanding occasional
opposition to the death penalty pro-
694
694 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
visions therein. The Revised Penal Code, as it was originally promulgated, provided
for the death penalty in specified crimes under specific circumstances. As early as
1886, though, capital punishment had entered our legal system through the old
Penal Code, which was a modified version of the Spanish Penal Code of 1870.
The opposition to the death penalty uniformly took the form of a constitutional
question of whether or not the death penalty is a cruel, unjust, excessive or unusual
punishment in violation of the constitutional proscription against cruel and
unusual punishments. We unchangingly answered this question in the negative in
the cases of Harden v. Director of Prisons,8 People v. Limaco,9 People v.
Camano,10 People v. Puda11 and People v. Marcos.12 In Harden, we ruled:
“The penalty complained of is neither cruel, unjust nor excessive. In Ex-
parte Kemmler, 136 U.S. 436, the United States Supreme Court said that
‘punishments are cruel when they involve torture or a lingering death, but the
P a g e 5 | 279
punishment of death is not cruel, within the meaning of that word as used in the
constitution. It implies there something inhuman and barbarous, something more
than the mere extinguishment of life.’ “13
Consequently, we have time and again emphasized that our courts are not the fora
for a protracted debate on the morality or propriety of the death sentence where
the law itself provides therefor in specific and well-defined criminal acts. Thus we
had ruled in the 1951 case of Limaco that:
“x x x there are quite a number of people who honestly believe that the supreme
penalty is either morally wrong or unwise or ineffective. However, as long as that
penalty remains in the statute
________________
8 81 Phil. 741 [1948].
9 88 Phil. 36 [1951].
10 115 SCRA 688 [1982].
11 133 SCRA 1 [1984].
12 147 SCRA 204 [1987].
13 81 Phil. 741, 747 [1948].
695
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People us. Echegaray
books, and as long as our criminal law provides for its imposition in certain cases,
it is the duty of judicial officers to respect and apply the law regardless of their
private opinions."14
and this we have reiterated in the 1995 case of People v. Veneracion.15
Under the Revised Penal Code, death is the penalty for the crimes of treason,
correspondence with the enemy during times of war, qualified piracy, parricide,
murder, infanticide, kidnapping, rape with homicide or with the use of deadly
weapon or by two or more persons resulting in insanity, robbery with homicide, and
arson resulting in death. The list of capital offenses lengthened as the legislature
responded to the emergencies of the times. In 1941, Commonwealth Act (C.A.) No.
616 added espionage to the list. In the 1950s, at the height of the Huk rebellion,
the government enacted Republic Act (R.A.) No. 1700, otherwise known as the Anti-
Subversion Law, which carried the death penalty for leaders of the rebellion. From
1971 to 1972, more capital offenses were created by more laws, among them, the
Anti-Hijacking Law, the Dangerous Drugs Act, and the Anti-Carnapping Law.
During martial law, Presidential Decree (P.D.) No. 1866 was enacted penalizing
with death, among others, crimes involving homicide committed with an unlicensed
firearm.
In the aftermath of the 1986 revolution that dismantled the Marcos regime and
led to the nullification of the 1973 Constitution, a Constitutional Commission was
convened following appointments thereto by Corazon Aquino who was catapulted
to power by the people.
CRIMINAL LAW | PENALTIES
Tasked with formulating a charter that echoes the new found freedom of a
rejuvenated people, the Constitutional Commissioners grouped themselves into
working committees among which is the Bill of Rights Committee with Jose B.
Laurel, Jr. as Chairman and Father Joaquin G. Bernas, S.J., as Vice-Chairman.
_______________
14 88 Phil. 36, 43 [1951].
15 249 SCRA 246, 253 [1995].
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696 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
On July 17, 1986, Father Bernas presented the committee draft of the proposed bill
of rights to the rest of the commission. What is now Article III, Section 19(1) of the
1987 Constitution was first denominated as Section 22 and was originally worded
as follows:
“Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment, or the death penalty inflicted. Death penalty already imposed shall be
commuted to reclusion perpetua.”
Father Bernas explained that the foregoing provision was the result of a consensus
among the members of the Bill of Rights Committee that the death penalty should
be abolished. Having agreed to abolish the death penalty, they proceeded to
deliberate on how the abolition was to be done—whether the abolition should be
done by the Constitution or by the legislature—and the majority voted for a
constitutional abolition of the death penalty. Father Bernas explained:
“x x x [T]here was a division in the Committee not on whether the death penalty
should be abolished or not, but rather on whether the abolition should be done by
the Constitution—in which case it cannot be restored by the legislature—or left to
the legislature. The majority voted for the constitutional abolition of the death
penalty. And the reason is that capital punishment is inhuman for the convict and
his family who are traumatized by the waiting, even if it is never carried out. There
is no evidence that the death penalty deterred deadly criminals, hence, life should
not be destroyed just in the hope that other lives might be saved. Assuming mastery
over the life of another man is just too presumptuous for any man. The fact that
the death penalty as an institution has been there from time immemorial should
not deter us from reviewing it. Human life is more valuable than an institution
intended precisely to serve human life. So, basically, this is the summary of the
reasons which were presented in support of the constitutional abolition of the death
penalty."16
The original wording of Article III, Section 19(1), however, did not survive the
debate that it instigated. Commissioner
________________
16 Record, CONCOM, July 17, 1986, Vol. I, p. 676.
P a g e 6 | 279
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People vs. Echegaray
Napoleon G. Rama first pointed out that “never in our history has there been a
higher incidence of crime” and that “criminality was at its zenith during the last
decade."17 Ultimately, the dissent defined itself to an unwillingness to absolutely
excise the death penalty from our legal system and leave society helpless in the
face of a future upsurge of crimes or other similar emergencies. As Commissioner
Rustico F. de los Reyes, Jr. suggested, ‘although we abolish the death penalty in
the Constitution, we should afford some amount of flexibility to future
legislation,"18 and his concern was amplified by the interpellatory remarks of
Commissioner Lugum L. Uka, Commissioner and now Associate Justice Florenz
Regalado, Commissioner Crispino M. de Castro, Commissioner Ambrosio B.
Padilla, Commissioner Christian Monsod, Commissioner Francisco A. Rodrigo, and
Commissioner Ricardo Romulo. Commissioner Padilla put it succinctly in the
following exchange with Commissioner Teodoro C. Bacani:
“BISHOP BACANI. x x x At present, they explicitly make it clear that the church
has never condemned the right of the state to inflict capital punishment.
MR. PADILLA. x x x So it is granted that the state is not deprived of the right
even from a moral standpoint of imposing or prescribing capital punishment.
BISHOP BACANI. Yes. What I am saying is that from the Catholic point of
view, that right of the state is not forbidden.
MR. PADILLA. In fact x x x we have to accept that the state has the delegated
authority from the Creator to impose the death penalty under certain
circumstances.
BISHOP BACANI. The state has the delegation from God for it to do what is
needed for the sake of the common good, but the issue at stake is whether or not
under the present circumstances that will be for the common good.
MR. PADILLA. But the delegated power of the state cannot be denied.
_______________
17 Id., p. 678.
18 Id., p. 680.
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BISHOP BACANI. Yes, the state can be delegated by God at a particular stage in
history, but it is not clear whether or not that delegation is forever under all
circumstances.
MR. PADILLA. So this matter should be left to the legislature to determine,
under certain specified conditions or circumstances, whether the retention of the
death penalty or its abolition would be for the common good. I do not believe this
Commission can a priori, and as was remarked within a few days or even a month,
determine a positive provision in the Constitution that would prohibit even the
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legislature to prescribe the death penalty for the most heinous crimes, the most
grievous offenses attended by many qualifying and aggravating circumstances." 19
What followed, thus, were proposed amendments to the beleaguered provision. The
move to add the phrase, “unless for compelling reasons involving heinous crimes,
the national assembly provides for the death penalty,” came from Commissioners
Monsod, Jose E. Suarez and de los Reyes. Commissioner Rodrigo, however,
expressed reservations even as regards the proposed amendment. He said:
“x x x [T]he issue here is whether or not we should provide this matter in the
Constitution or leave it to the discretion of our legislature. Arguments pro and con
have been given x x x. But my stand is, we should leave this to the discretion of the
legislature.
The proposed amendment is halfhearted. It is awkward because we will, in
effect, repeal by our Constitution a piece of legislation and after repealing this piece
of legislation, tell the legislature that we have repealed the law and that the
legislature can go ahead and enact it again. I think this is not worthy of a
constitutional body like ours. If we will leave the matter of the death penalty to the
legislature, let us leave it completely to the discretion of the legislature, but let us
not have this half-baked provision. We have many provisions in the Revised Penal
Code imposing the death penalty. We will now revoke or repeal these pieces of
legislation by means of the Constitution, but at the same time say that it is up to
the legislature to impose this again.
x x x The temper and condition of the times change x x x and so we, I think we
should leave this matter to the legislature to enact
________________
19 Record, CONCOM, July 17, 1986, Vol. I, p. 712.
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statutes depending on the changing needs of the times. Let us entrust this
completely to the legislature composed of representatives elected by the people.
I do not say that we are not competent. But we have to admit the fact that we
are not elected by the people and if we are going to entrust this to the legislature,
let us not be half-baked nor halfhearted about it. Let us entrust it to the legislature
100 percent.20
Nonetheless, the proposed amendment was approved with twenty-three (23)
commissioners voting in favor of the amendment and twelve (12) voting against it,
followed by more revisions, hence the present wording of Article III, Section 19(1)
of the 1987 Constitution in the following tenor:
“Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment
inflicted. Neither shall death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress hereafter provides for it. Any death penalty
already imposed shall be reduced to reclusion perpetua.”
P a g e 7 | 279
The implications of the foregoing provision on the effectivity of the death penalty ________________
provisions in the Revised Penal Code and certain special criminal laws and the
state of the scale of penalties thereunder, were tremendous. 23 155 SCRA 113 [1987].
The immediate problem pertained to the applicable penalty for what used to be 24 156 SCRA 242 [1987].
capital crimes. In People v. Gavarra,21 we stated that “in view of the abolition of the 25 165 SCRA 637 [1988].

death penalty under Section 19, Article III of the 1987 Constitution, the penalty 26 170 SCRA 107 [1989].

that may be imposed for murder is reclusion temporal in its maximum period to
reclusion perpetua"22 thereby eliminating death as the original maximum period.
The constitutional abolition of the death penalty, it seemed, limited the penalty for
murder to only the remaining periods, to wit, the minimum and the medium, which
we then, in People v.
_______________
20 Id., p. 744
21 155 SCRA 327 [1987].
22 Id., p. 335.
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Masangkay,23 People v. Atencio 24 and People v. Intino 25 divided into three new
periods, to wit, the lower half of reclusion temporal maximum as the minimum; the
upper half of reclusion temporal maximum as the medium; and reclusion perpetua
as the maximum, in keeping with the three-grade scheme under the Revised Penal
Code. In People v. Muñoz,26 however, we reconsidered these aforecited cases and
after extended discussion, we concluded that the doctrine announced therein did
not reflect the intention of the framers. The crux of the issue was whether or not
Article III, Section 19(1) absolutely abolished the death penalty, for if it did, then,
the aforementioned new three-grade penalty should replace the old one where the
death penalty constituted the maximum period. But if no total abolition can be read
from said constitutional provision and the death penalty is only suspended, it
cannot as yet be negated by the institution of a new three-grade penalty premised
on the total inexistence of the death penalty in our statute books. We thus ruled
in Muñoz:
“The advocates of the Masangkay ruling argue that the Constitution abolished the
death penalty and thereby limited the penalty for murder to the remaining
periods, to wit, the minimum and the medium. These should now be divided into
three new periods in keeping with the three-grade scheme intended by the
legislature. Those who disagree feel that Article III, Section 19(1) merely prohibits
the imposition of the death penalty and has not, by reducing it to reclusion
perpetua, also correspondingly reduced the remaining penalties. These should be
maintained intact.
A reading of Section 19(1) of Article III will readily show that there is really
nothing therein which expressly declares the abolition of the death penalty. The
provision merely says that the death penalty shall not be imposed unless for
compelling reasons involving heinous crimes the Congress hereafter provides for it
and, if already
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imposed, shall be reduced to reclusion perpetua. The language, while rather
awkward, is still plain enough."27
Nothing is more defining of the true content of Article III, Section 19(1) of the 1987
Constitution than the form in which the legislature took the initiative in re-
imposing the death penalty.
The Senate never doubted its power as vested in it by the Constitution, to enact
legislation re-imposing the death penalty for compelling reasons involving heinous
crimes. Pursuant to this constitutional mandate, the Senate proceeded to a two-
step process consisting of: first, the decision, as a matter of policy, to re-impose the
death penalty or not; and second, the vote to pass on the third reading the bill re-
imposing the death penalty for compelling reasons involving heinous crimes.
On February 15, 1993, after a fierce and fiery exchange of arguments for and
against capital punishment, the Members of the Senate voted on the policy issue of
death penalty. The vote was explained, thus:
“SUSPENSION OF THE RULES
Upon motion of Senator Romulo, there being no objection, the Body suspended the
Rules of the Senate. Thereafter, upon motion of Senator Romulo, there being no
objection, the Chair directed that a nominal voting be conducted on the policy issue
of death penalty.
INQUIRY OF SENATOR TOLENTINO
Asked by Senator Tolentino on how the Members of the Senate would vote on
this policy question, Senator Romulo stated that a vote of Yes would mean a vote
in favor of death as a penalty to be reincorporated in the scale of penalties as
provided in the Revised Penal Code, and a vote of No would be a vote against the
reincorporation of death penalty in the scale of penalties in the Revised Penal Code.
________________
27 Id., p. 121.
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 People us. Echegaray
INQUIRY OF SENATOR ALVAREZ
xxx
The Chair explained that it was agreed upon that the Body would first decide
the question whether or not death penalty should be reimposed, and thereafter, a
seven-man committee would be formed to draft the compromise bill in accordance
with the result of the voting. If the Body decides in favor of the death penalty, the
Chair said that the committee would specify the crimes on which death penalty
would be imposed. It affirmed that a vote of Yes in the nominal voting would mean
a vote in favor of death penalty on at least one crime, and that certain refinements
on how the penalty would be imposed would be left to the discretion of the seven-
man committee.
xxx
INQUIRY OF SENATOR TAÑADA
In reply to Senator Tañada’s query, the Chair affirmed that even if a senator
would vote ‘yes’ on the basic policy issue, he could still vote ‘no’ on the imposition
of the death penalty on a particular crime.
REMARKS OF SENATOR TOLENTINO
Senator Tolentino observed that the Body would be voting on the basic policy
issue of whether or not the death penalty would be included in the scale of penalties
found in Article 27 of the Revised Penal Code, so that if it is voted down, the Body
would discontinue discussing Senate Bill No. 891 pursuant to the Rules, but if
approved, a special committee, as agreed upon in the caucus, is going to be
appointed and whatever course it will take will depend upon the mandate given to
it by the Body later on.
The Chair affirmed Senator Tolentino’s observations.
REMARKS OF SENATOR ROCO
Senator Roco stated that the Body would vote whether or not death as a penalty
will be reincorporated in the scale of penalties provided by the Revised Penal Code.
However, he pointed out that if the Body decides in favor of death penalty, the Body
would still have to address two issues: 1) Is the crime for which the death penalty
is supposed to be imposed heinous pursuant to the constitutional mandate? 2) And,
if so, is there a compelling reason to impose the
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death penalty for it? The death penalty, he stressed, cannot be imposed simply
because the crime is heinous. “28
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With seventeen (17) affirmative votes and seven (7) negative votes and no
abstention, the Chair declared that the Senate has voted to re-incorporate death as
a penalty in the scale of penalties as provided in the Revised Penal Code. A
nineperson committee was subsequently created to draft the compromise bill
pursuant to said vote. The mandate of the committee was to retain the death
penalty, while the main debate in the committee would be the determination of the
crime to be considered heinous.
On March 17, 1993, Senator Arturo Tolentino, Chairman of the Special
Committee on the Death Penalty, delivered his Sponsorship Speech. He began with
an explanation as to why the Senate Bill No. 891 re-imposes the death penalty by
amending the Revised Penal Code and other special penal laws and includes
provisions that do not define or punish crimes but serve purposes allied to the re-
imposition of the death penalty. Senator Tolentino stated:
“x x x [W]hen the Senate approved the policy of reimposing the death penalty on
heinous crimes and delegated to the Special Committee the work of drafting a bill,
a compromise bill that would be the subject for future deliberations of this Body,
the Committee had to consider that the death penalty was imposed originally in
the Revised Penal Code.
So, when the Constitution was approved in order to do away with the death
penalty, unless Congress should, for compelling reasons reimpose that penalty on
heinous crimes, it was obvious that it was the Revised Penal Code that was affected
by that provision of the Constitution. The death penalty, as provided in the Revised
Penal Code, would be considered as having been repealed—all provisions on the
death penalty would be considered as having been repealed by the Constitution,
until Congress should, for compelling reasons, reimpose such penalty on heinous
crimes. Therefore, it was not only one article but many articles of the Revised Penal
Code that were actually affected by the Constitution.
________________
28 Journal, Senate, February 15, 1993, Vol. 2, p. 1246.
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And it is in consideration of this consequence of the constitutional provision that
our Special Committee had to consider the Revised Penal Code itself in making this
compromise bill or text of the bill. That is why, in the proposed draft now under
consideration which we are sponsoring, the specific provisions of the Revised Penal
Code are actually either reenacted or amended or both. Because by the effect of the
Constitution, some provisions were totally repealed, and they had to be reenacted
so that the provisions could be retained. And some of them had to be amended
because the Committee thought that amendments were proper."29
In response to a query by Senator Gloria Macapagal-Arroyo as to whether or not it
would have been better if the Senate were to enact a special law which merely
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defined and imposed the death penalty for heinous crimes, Senator Tolentino
explicated, thus:
“x x x [T]hat may be a way presenting the bill. But we must bear in mind that the
death penalty is imposed in the Revised Penal Code. Therefore, when the
Constitution abolished the death penalty, it actually was amending the Revised
Penal Code to such an extent that the Constitution provides that where the death
penalty has already been imposed but not yet carried out, then the penalty shall be
reclusion perpetua, that is the penalty in the Revised Penal Code. So we thought
that it would be best to just amend the provisions of the Revised Penal Code,
restoring the death penalty for some crimes that may be considered as heinous.
That is why the bill is in this form amending the provisions of the Revised Penal
Code.
Of course, if some people want to present a special bill . . . the whole trouble is,
when a special bill is presented and we want to punish in the special bill the case
of murder, for instance, we will have to reproduce the provisions of the Revised
Penal Code on murder in order to define the crime for which the death penalty shall
be imposed. Or if we want to impose the death penalty in the case of kidnapping
which is punished in the Revised Penal Code, we will do the same—merely
reproduce. Why will we do that? So we just followed the simpler method of keeping
the definition of the crime as the same and merely adding some aggravating
circumstances and
________________
29 Record, Senate, March 17, 1993, Vol. IV, p. 77.
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People vs. Echegaray
reimposing the death penalty in these offenses originally punished in the Revised
Penal Code."30
From March 17, 1993, when the death penalty bill was presented for discussion
until August 16, 1993, the Members of the Senate debated on its provisions.
The stiffest opposition thereto was bannered by Senator Lina who kept
prodding the sponsors of the bill to state the compelling reason for each and every
crime for which the supreme penalty of death was sought. Zeroing in on the
statement in the preamble of the death penalty bill that the same is warranted in
the face of “the alarming upsurge of [heinous] crimes,” Senator Lina demanded for
solid statistics showing that in the case of each and every crime in the death penalty
bill, there was a significantly higher incidence of each crime after the suspension
of the death penalty on February 2, 1987 when the 1987 Constitution was ratified
by the majority of the Filipino people, than before such ratification. 31 Inasmuch as
the re-impositionists could not satisfy the abolitionists with sufficient statistical
data for the latter to accept the alarming upsurge of heinous crimes as a compelling
reason justifying the re-imposition of the death penalty, Senator Lina concluded
that there were, in fact, no compelling reasons therefor. In the alternative, Senator
Lina argued that the compelling reason required by the constitution was that “the
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State has done everything in its command so that it can be justified to use an
inhuman punishment called death penalty."32 The problem, Senator Lina
emphasized, was that even the re-impositionists admit that there were still
numerous reforms in the criminal justice system that may and must be put in place,
and so clearly, the recourse to the enactment of a death penalty bill was not in the
nature of a last resort, hence, unconstitutional in the absence of compelling
reasons. As an initial reaction to Senator Lina’s contentions, Senator Tolen-
_______________
30 Id., May 18, 1993, Vol. IV, p. 596.
31 Record, Senate, March 18, 1993, Vol. IV, pp. 106–112.
32 Journal, February 10 & 11, 1993, Vol. II, p. 1223.
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People vs. Echegaray
tino explained that the statement in the preamble is a general one and refers to all
the crimes covered by the bill and not to specific crimes. He added that one crime
may not have the same degree of increase in incidence as the other crimes and that
the public demand to impose the death penalty is enough compelling reason. 33
Equally fit to the task was Senator Wigberto Tañada to whom the battle lines
were clearly drawn. He put to issue two things: first, the definition of “heinous
crimes” as provided for in the death penalty bill; and second, the statement of
compelling reasons for each and every capital crime. His interpellation of Senator
Tolentino clearly showed his objections to the bill:
“Senator Tañada. x x x But what would make crimes heinous, Mr. President?
Are crimes heinous by their nature or elements as they are described in the bill or
are crimes heinous because they are punished by death, as bribery and
malversation are proposed to be punished in the bill?
Senator Tolentino. They are heinous by their nature, Mr. President, but that
is not supposed to be the exclusive criterion. The nature of the offense is the most
important element in considering it heinous but, at the same time, we should
consider the relation of the offense to society in order to have a complete idea of the
heinous nature of these offenses. In the case of malversation or bribery, for
instance, these offenses by themselves connected with the effect upon society and
the government have made them fall under the classification of heinous crimes.
The compelling reason for imposing the death penalty is when the offenses of
malversation and bribery becomes so grave and so serious as indicated in the
substitute bill itself, then there is a compelling reason for the death penalty.
Senator Tañada. With respect to the compelling reasons, Mr. President, does
the Gentleman believe that these compelling reasons, which would call for the
reimposition of the death penalty, should be separately, distinctly and clearly
stated for each crime so that it will be very clear to one and all that not only are
these crimes
________________
33 Journal, Senate, March 22, 1993, Vol. II, pp. 1574–1575.
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People vs. Echegaray
heinous but also one can see the compelling reasons for the reimposition of the
death penalty therefor?
Senator Tolentino. Mr. President, that matter was actually considered by the
Committee. But the decision of the Committee was to avoid stating the compelling
reason for each and every offense that is included in the substitute measure. That
is why in the preamble, general statements were made to show these compelling
reasons. And that, we believe, included in the bill, when converted into law, would
be sufficient notice as to what were considered compelling reasons by the Congress,
in providing the death penalty for these different offenses.
If a matter like this is questioned before the Supreme Court, I would suppose
that with the preamble already in general terms, the Supreme Court would feel
that it was the sense of Congress that this preamble would be applicable to each
and every offense described or punishable in the measure.
So we felt that it was not necessary to repeat these compelling reasons for each
and every offense.
Senator Tañada. Mr. President, I am thinking about the constitutional
limitations upon the power of Congress to enact criminal legislation, especially the
provisions on the Bill of Rights, particularly the one which says that no person shall
be held to answer for a criminal offense without due process of law.
Can we not say that under this provision, it is required that the compelling
reasons be so stated in the bill so that the bill, when it becomes a law, will clearly
define the acts and the omissions punished as crimes?
Senator Tolentino. Mr. President, I believe that in itself, as substantive law,
this is sufficient. The question of whether there is due process will more or less be
a matter of procedure in the compliance with the requirements of the Constitution
with respect to due process itself which is a separate matter from the substantive
law as to the definition and penalty for crimes.
Senator Tañada. Under the Constitution, Mr. President, it appears that the
reimposition of the death penalty is subject to three conditions and these are:
1. 1.Congress should so provide such reimposition of the death penalty;
2. 2.There are compelling reasons; and
3. 3.These involve heinous crimes.
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People vs. Echegaray
Under these provisions of the Constitution, paragraph 1, Section 13, does the
distinguished Gentleman not feel that Congress is bound to state clearly the
compelling reasons for the reimposition of the death penalty for each crime, as well
as the elements that make each of the crimes heinous included in the bill?
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Senator Tolentino. Mr. President, that is a matter of opinion already. I
believe that whether we state the compelling reasons or not, whether we state why
a certain offense is heinous, is not very important. If the question is raised in the
Supreme Court, it is not what we say in the bill that will be controlling but what
the Supreme Court will feel as a sufficient compelling reason or as to the heinous
nature whether the crime is heinous or not. The accused can certainly raise the
matter of constitutionality but it will not go into the matter of due process. It will
go into the very power of Congress to enact a bill imposing the death penalty. So
that would be entirely separate from the matter of due process."34
Senator Francisco Tatad, on his part, pointed out that the death penalty bill
violated our international commitment in support of the worldwide abolition of
capital punishment, the Philippines being a signatory to the International
Covenant on Civil and Political Rights and its Second Optional Protocol. Senator
Ernesto Herrera clarified, however, that in the United Nations, subject matters are
submitted to the different committees which vote on them for consideration in the
plenary session. He stressed that unless approved in the plenary session, a
declaration would have no binding effect on signatory countries. In this respect, the
Philippines cannot be deemed irrevocably bound by said covenant and protocol
considering that these agreements have reached only the committee level.35
After the protracted debate, the Members of the Senate voted on Senate Bill
No. 891 on third reading. With seventeen (17) affirmative votes, four (4) negative
votes, and one abstention, the death penalty bill was approved on third reading on
August 16, 1993.
_______________
34 Record, Senate, May 11, 1993, Vol. IV, pp. 500–501.
35 Journal, Senate, February 2, 1993, Vol. II, p. 1161.
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The Senate’s vote to pass Senate Bill No. 891 on third reading on August 16, 1993
was a vindication of the House of Representatives. The House had, in the Eight
Congress, earlier approved on third reading House Bill No. 295 on the restoration
of the death penalty for certain heinous crimes. The House was in effect rebuffed
by the Senate when the Senate killed House Bill No. 295 along with other bills
coming from the House. House Bill No. 295 was resurrected during the Ninth
Congress in the form of House Bill No. 62 which was introduced by twenty one (21)
Members of the House of Representatives on October 27, 1992. House Bill No. 62
was a merger of House Bill Nos. 125, 187, 411, 764, 506; 781, 955, 1565, 1586, 2206,
3238, 3576 and 3632 authored by various Members of the Lower House.
In his Sponsorship Speech, Representative Manuel R. Sanchez of Rizal ably
essayed the constitutional vesting in Congress of the power to re-impose the death
penalty for compelling reasons invoking heinous crimes as well as the nature of
this constitutional pre-requisite to the exercise of such power.
“Mr. Speaker, in Article III, Section 19(1) of Constitution reads, as I quote:
P a g e 11 | 279
‘Neither shall death penalty be imposed, unless, for compelling reasons involving
heinous crimes, the Congress shall thereafter provide for it. . .'
The phrase ‘unless, for compelling reasons involving heinous crimes, the
Congress shall thereafter provide for it was introduced as an amendment by then
Comm. Christian Monsod.
The import of this amendment is unmistakable. By this amendment, the death
penalty was not completely abolished by the 1987 Constitution. Rather, it merely
suspended the death penalty and gave Congress the discretion to review it at the
propitious time.
Arguing for the inclusion of said amendment in the fine provision, Comm.
Ricardo Romulo said, and I quote:
“The people should have the final say on the subject, because, at some future time,
the people might want to restore death penalty through initiative and referendum.
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People vs. Echegaray
Commissioner Monsod further argued, and I quote:
We cannot presume to have the wisdom of the ages. Therefore, it is entirely possible
in the future that circumstances may arise which we should not preclude today.
xxx xxx xxx
I believe that [there] are enough compelling reasons that merit the reimposition
of the capital punishment. The violent manner and the viciousness in which crimes
are now committed with alarming regularity, show very clearly a patent disregard
of the law and a mockery of public peace and order.
In the public gallery section today are the relatives of the victims of heinous
crimes—the Hultmans, the Maguans, the Vizcondes, the Castañoses, and many
more, and they are all crying for justice. We ought to listen to them because their
lives, their hopes, their dreams, their future have fallen asunder by the cruel and
vicious criminality of a few who put their selfish interest above that of society.
Heinous crime is an act or series of acts which, by the flagrantly violent manner
in which the same was committed or by the reason of its inherent viciousness,
shows a patent disregard and mockery of the law, public peace and order, or public
morals. It is an offense whose essential and inherent viciousness and atrocity are
repugnant and outrageous to a civilized society and hence, shock the moral self of
a people.
Of late, we are witness to such kind of barbaric crimes.
The Vizconde massacre that took the lives of a mother and her two lovely
daughters, will stand in the people’s memory for many long years as the epitome of
viciousness and atrocity that are repugnant to civilized society.
The senseless murder of Eldon Maguan, an up-and-coming young business
executive, was and still is an outrage that shocks the moral self of our people.
The mind-boggling death of Maureen Hultmann, a comely 16 year-old high
school student who dreamt of becoming a commercial model someday, at the hands
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of a crazed man was so repulsive, so brutal that it offends the sensibilities of
Christians and nonChristians alike.
The cold-blooded double murder of Cochise Bernabe and Beebom Castaños, the
lovely and promising couple from the University
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of the Philippines, is eternally lodged in the recesses of our minds and still makes
our stomach turn in utter disgust.
xxx xxx xxx
The seriousness of the situation is such that if no radical action is taken by this
body in restoring death penalty as a positive response to the overwhelming clamor
of the people, then, as Professor Esteban Bautista of the Philippine Law Center
said, and I quote:
When people begin to believe that organized society is unwilling or unable to
impose upon criminal offenders the punishment they deserve, there are sown the
seeds of anarchy—of self-help, of vigilante justice and lynch law. The people will
take the law upon their hands and exact vengeance in the nature of personal
vendetta.’
It is for this reason, Mr. Speaker, that I stand here and support House Bill No.
62.
As duly elected Representatives of our people, collectively, we ought to listen to
our constituents and heed their plea—a plea for life, liberty and pursuit of their
happiness under a regime of justice and democracy, and without threat that their
loved ones will be kidnapped, raped or butchered.
But if such a misfortune befalls them, there is the law they could rely on for
justice. A law that will exact retribution for the victims. A law that will deter future
animalistic behavior of the criminal who take their selfish interest over and above
that of society. A law that will deal a deathblow upon all heinous crimes.
Mr. Speaker, my distinguished colleagues, for the preservation of all that we
hold dear and sacred, let us restore the death penalty."36
A studious comparison of the legislative proceedings in the Senate and in the House
of Representatives reveals that, while both Chambers were not wanting of
oppositors to the death penalty, the Lower House seemed less quarrelsome about
the form of the death penalty bill as a special law specifying certain heinous crimes
without regard to the provisions of the Revised Penal Code and more unified in the
perception
________________
36 Record, House of Representatives, Vol. III, November 9, 1992, pp. 417–418.
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P a g e 12 | 279
of what crimes are heinous and that the fact of their very heinousness involves the
compulsion and the imperative to suppress, if not completely eradicate, their
occurrence. Be it the foregoing general statement of Representative Sanchez on the
following details of the nature of the heinous crimes enumerated in House Bill No.
62 by Representative Miguel L. Romero of Negros Oriental, there was clearly,
among the hundred or so re-impositionists in the Lower House, no doubt as to their
cause:
“My friends, this bill provides for the imposition of the death penalty not only for
the importation, manufacture and sale of dangerous drugs, but also for other
heinous crimes such as treason; parricide; murder; kidnapping; robbery; rape as
defined by the Revised Penal Code with or without additionally defined
circumstances; plunder, as defined in R.A. 7080; piracy, as defined under Section 2
of PD 532; carnapping, as defined in Section 2 of RA 6539, when the owner, driver
or occupant is killed; hijacking, as defined in x x x RA 6235; and arson resulting in
the death of any occupants.
All these crimes have a common denominator which qualifies them to the level
of heinous crimes. A heinous crime is one which, by reason of its inherent or
manifest wickedness, viciousness, atrocity or perversity, is repugnant and
outrageous to the common standards of decency and morality in a just and civilized
society.
For instance, the crime of treason is defined as a breach of allegiance to a
government, committed by a person who owes allegiance to it (U.S. v. Abad, 1 Phil.
437). By the ‘allegiance’ is meant the obligation of fidelity and obedience which
individuals owe to the government under which they live or to their sovereign in
return for the protection which they receive (52 Am Jur 797).
In kidnapping, the thought alone of one’s loved one being held against his or
her own will in some unidentified x x x house by a group of scoundrels who are
strangers is enough to terrify and send shivers of fear through the spine of any
person, even scoundrels themselves.
In robbery accompanied by rape, intentional mutilation or arson, what is being
punished by death is the fact that the perpetrator, at the time of the commission of
the crime, thinks nothing of the other crime he commits and sees it merely as a
form of selfamusement. When a homicide is committed by reason of the rob-
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bery, the culprits are perceived as willing to take human life in exchange for money
or other personal property.
In the crime of rape, not only do we speak of the pain and agony of the parents
over the personal shock and suffering of their child but the stigma of the traumatic
and degrading incident which has shattered the victim’s life and permanently
destroyed her reputation, not to mention the ordeal of having to undergo the
shameful experience of police interrogation and court hearings.
Piracy, which is merely a higher form of robbery, is punished for the universal
hostility of the perpetrators against their victims who are passengers and
complement of the vessel, and because of the fact that, in the high seas, no one may
CRIMINAL LAW | PENALTIES
be expected to be able to come to the rescue of the helpless victims. For the same
reason, Mr. Speaker, the crime of air piracy is punished due to the evil motive of
the hijackers in making unreasonable demands upon the sovereignty of an entire
nation or nations, coupled with the attendant circumstance of subjecting the
passengers to terrorism."37
The debate on House Bill No. 62 lasted from October 27, 1992 to February 11, 1993.
On February 11, 1993, the Members of the House of Representatives
overwhelmingly approved the death penalty bill on second reading.
On February 23, 1993, after explaining their votes, the Members of the House
of Representatives cast their vote on House Bill No. 62 when it was up for
consideration on third reading.38 The results were 123 votes in favor, 26 votes
against, and 2 abstentions.
After the approval on third reading of House Bill No. 62 on February 23, 1993
and of Senate Bill No. 891 on August 16, 1993, the Bicameral Conference
Committee convened to incorporate and consolidate them.
On December 31, 1993, Republic Act (R.A.) No. 7659, entitled, “An Act to
Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose
the Revised Penal Code,
________________
37 Record, House of Representatives, Vol. III, November 9, 1992, pp. 419–420.
38 Record, House of Representatives, Vol. V, February 23, 1993, p. 98.
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People vs. Echegaray
as Amended, Other Special Penal Laws, and for Other Purposes,” took effect.39
Between December 31, 1993, when R.A. No. 7659 took effect, and the present
time, criminal offenders have been prosecuted under said law, and one of them,
herein accusedappellant, has been, pursuant to said law, meted out the supreme
penalty of death for raping his ten-year old daughter. Upon his conviction, his case
was elevated to us on automatic review. On June 25, 1996, we affirmed his
conviction and the death sentence.
Now, accused-appellant comes to us in the heels of this court’s affirmation of
his death sentence and raises for the first time the issue of the constitutionality of
R.A. 7659. His thesis is two-fold: (1) that the death penalty law is
unconstitutional per se for having been enacted in the absence of compelling
reasons therefor, and (2) that the death penalty for rape is a cruel, excessive and
inhuman punishment in violation of the constitutional proscription against
punishment of such nature.
We reject accused-appellant’s proposition.
Three justices interposed their dissent hereto, agreeing with accused-
appellant’s view that Congress enacted R.A. No. 7659 without complying with the
twin requirements of compelling reasons and heinous crimes.
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 At this juncture, the detailed events leading to the enactment of R.A. No. 7659
as unfurled in the beginning of this disquisition, necessarily provide the context for
the following analysis.
Article III, Section 19(1) of the 1987 Constitution plainly vests in Congress the
power to re-impose the death penalty “for compelling reasons involving heinous
crimes.” This power is not subsumed in the plenary legislative power of Congress,
for it is subject to a clear showing of “compelling reasons involving heinous crimes.”
________________
39 People v. Simon, 234 SCRA 555 [1994]; People v. Timple, 237 SCRA
52 [1994].
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People vs. Echegaray
The constitutional exercise of this limited power to reimpose the death penalty
entails: (1) that Congress define or describe what is meant by heinous crimes; (2)
that Congress specify and penalize by death, only crimes that qualify as heinous in
accordance with the definition or description set in the death penalty bill and/or
designate crimes punishable by reclusion perpetua to death in which latter case,
death can only be imposed upon the attendance of circumstances duly proven in
court that characterize the crime to be heinous in accordance with the definition or
description set in the death penalty bill; and (3) that Congress, in enacting this
death penalty bill be singularly motivated by “compelling reasons involving
heinous crimes.”
In the second whereas clause of the preamble of R.A. No. 7659, we find the
definition or description of heinous crimes. Said clause provides that:
“x x x the crimes punishable by death under this Act are heinous for being grievous,
odious and hateful offenses and which, by reason of their inherent or manifest
wickedness, viciousness, atrocity and perversity are repugnant and outrageous to
the common standards and norms of decency and morality in a just, civilized and
ordered society.”
Justice Santiago Kapunan, in his dissenting opinion in People v. Alicando,40 traced
the etymological root of the word “heinous” to the Early Spartans’ word, “haineus,”
meaning, hateful and abominable, which, in turn, was from the Greek prefix
“haton,” denoting acts so hatefully or shockingly evil.
We find the foregoing definition or description to be a sufficient criterion of
what is to be considered a heinous crime. This criterion is deliberately undetailed
as to the circumstances of the victim, the accused, place, time, the manner of
commission of crime, its proximate consequences and effects on the victim as well
as on society, to afford the sentencing authority sufficient leeway to exercise his
discretion in imposing the appropriate penalty in cases where R.A. No. 7659
_______________
40 251 SCRA 293 [1995].
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People vs. Echegaray
imposes not a mandatory penalty of death but the more flexible penalty of reclusion
perpetua to death.
During the debates on the proposed death penalty bill, Senators Lina and
Tañada grilled the sponsors of the bill as regards what they perceived as a mere
enumeration of capital crimes without a specification of the elements that make
them heinous. They were oblivious to the fact that there were two types of crimes
in the death penalty bill: first, there were crimes penalized by reclusion perpetua
to death; and second, there were crimes penalized by mandatory capital
punishment upon the attendance of certain specified qualifying circumstances.
Under R.A. No. 7659, the following crimes are penalized by reclusion perpetua
to death:
1. (1)Treason (Sec. 2);
2. (2)Qualified piracy (Sec. 3);
3. (3)Parricide (Sec. 5);
4. (4)Murder (Sec. 6);
5. (5)Infanticide (Sec. 7);
6. (6)Kidnapping and serious illegal detention if attended by any of the
following four circumstances: (a) the victim was detained for more than
three days; (b) it was committed simulating public authority; (c) serious
physical injuries were inflicted on the victim or threats to kill him were
made; and (d) if the victim is a minor, except when the accused is any of
the parents, female or a public officer (Sec. 8);
7. (7)Robbery with homicide, rape or intentional mutilation (Sec. 9);
8. (8)Destructive arson if what is burned is; (a) one or more buildings or
edifice; (b) a building where people usually gather; (c) a train, ship or
airplane for public use; (d) a building or factory in the service of public
utilities; (e) a building for the purpose of concealing or destroying
evidence of a crime; (f) an arsenal, fireworks factory, or government
museum; and (g) a storehouse or factory of explosive materials located in
an inhabited place; or regardless of what is burned, if the arson is
perpetrated by two or more persons (Sec. 10);
9. (9)Rape attended by any of the following circumstances: (a) the rape is
committed with a deadly weapon; (b) the rape is commit
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People vs, Echegaray
1. ted by two or more persons; and (c) the rape is attempted or frustrated and
committed with homicide (Sec. 11);
2. (10)Plunder involving at least P50 million (Sec. 12);
P a g e 14 | 279
 3. (11)Importation of prohibited drugs (Sec. 13);
4. (12)Sale, administration, delivery, distribution, and transportation of
prohibited drugs (id.);
5. (13)Maintenance of den, dive or resort for users of prohibited drugs (id.);
6. (14)Manufacture of prohibited drugs (id.);
7. (15)Possession or use of prohibited drugs in certain specified
amounts (id.);
8. (16)Cultivation of plants which are sources of prohibited drugs (id.);
9. (17)Importation of regulated drugs (Sec. 14);
10. (18)Manufacture of regulated drugs (id.);
11. (19)Sale, administration, dispensation, delivery, transportation, and
distribution of regulated drugs (id.);
12. (20)Maintenance of den, dive, or resort for users of regulated drugs (Sec.
15);
13. (21)Possession or use of regulated drugs in specified amounts (Sec. 16);
14. (22)Misappropriation, misapplication or failure to account dangerous
drugs confiscated by the arresting officer (Sec. 17);
15. (23)Planting evidence of dangerous drugs in person or immediate vicinity
of another to implicate the latter (Sec. 19); and
16. (24)Carnapping where the owner, driver or occupant of the carnapped
motor vehicle is killed or raped (Sec. 20).
All the foregoing crimes are not capital crimes per se, the uniform penalty for all of
them being not mandatory death but the flexible penalty of reclusion perpetua to
death. In other words, it is premature to demand for a specification of the heinous
elements in each of the foregoing crimes because they are not anyway mandatorily
penalized with death. The elements that call for the imposition of the supreme
penalty of death in these crimes, would only be relevant when the trial court, given
the prerogative to impose reclusion perpetua, instead actually imposes the death
penalty because it has, in appreciating the evidence proferred before it, found the
at-
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718 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
tendance of certain circumstances in the manner by which the crime was
committed, or in the person of the accused on his own or in relation to the victim,
or in any other matter of significance to the commission of the crime or its effects
on the victim or on society, which circumstances characterize the criminal acts as
grievous, odious, or hateful, or inherently or manifestly wicked, vicious, atrocious
or perverse as to be repugnant and outrageous to the common standards and norms
of decency and morality in a just, civilized and ordered society.
On the other hand, under R.A. No. 7659, the mandatory penalty of death is
imposed in the following crimes:
(1) Qualified bribery
“If any public officer is entrusted with law enforcement and be refrains from
arresting or prosecuting an offender who has committed a crime punishable by
CRIMINAL LAW | PENALTIES
reclusion perpetua and/or death in consideration of any offer, promise, gift or
present, he shall suffer the penalty for the offense which was not prosecuted.
If it is the public officer who asks or demands such gift or present, he shall
suffer the penalty of death.” (Sec. 4)
(2) Kidnapping and serious illegal detention for ransom resulting in the death
of the victim or the victim is raped, tortured or subjected to dehumanizing acts
“The penalty shall be death where the kidnapping or detention was committed for
the purpose of ransom from the victim or any other person, even if none of the
circumstances above-mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the detention or is raped,
or is subject to torture or dehumanizing acts, the maximum penalty [of death] shall
be imposed.” (Sec. 8)
(3) Destructive arson resulting in death
“If as a consequence of the commission of any of the acts penalized under this
Article, death results, the mandatory penalty of death shall be imposed.” (Sec. 10)
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People vs. Echegaray
(4) Rape with the victim becoming insane, rape with homicide and qualified rape
“When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be death.
xxx
When by reason or on the occasion of the rape, a homicide is committed, the
penalty shall be death.
The death penalty shall also be imposed if the crime of rape is committed with
any of the following attendant circumstances:
1. 1.when the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the common-law spouse of the
parent of the victim.
2. 2.when the victim is under the custody of the police or military authorities.
3. 3.when the rape is committed in full view of the husband, parent, any of
the children or other relatives within the third degree of consanguinity.
4. 4.when the victim is a religious or a child below seven (7) years old.
5. 5.when the offender knows that he is afflicted with Acquired Immune
Deficiency Syndrome (AIDS) disease.
6. 6.when committed by any member of the Armed Forces of the Philippines
or the Philippine National Police or any law enforcement agency.
7. 7.when by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation.” (Sec. 11)
(5) Sale, administration, delivery, distribution and transportation of prohibited
drugs where the victim is a minor or the victim
P a g e 15 | 279
“Notwithstanding the provision of Section 20 of this Act to the contrary, if the
victim of the offense is a minor, or should a prohibited drug involved in any offense
under this Section be the proximate cause of the death of victim thereof, the
maximum penalty [of death] herein provided shall be imposed.” (Sec. 13)
(6) Maintenance of den, dive, or resort for users of prohibited drugs where the
victim is a minor or the victim dies
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720 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
“Notwithstanding the provisions of Section 20 of this Act to the contrary, the
maximum of the penalty [of death] shall be imposed in every case where a
prohibited drug is administered, delivered or sold to a minor who is allowed to use
the same in such place.
Should a prohibited drug be the proximate case of the death of a person using
the same in such den, dive or resort, the maximum penalty herein provided shall
be imposed on the maintainer notwithstanding the provisions of Section 20 of this
Act to the contrary.” (Sec. 13)
(7) Sale, administration, dispensation, delivery, distribution and transportation of
regulated drugs where the victim is a minor or the victim dies
“Notwithstanding the provisions of Section 20 of this Act to the contrary, if the
victim of the offense is a minor, or should a regulated drug involved in any offense
under this Section be the proximate cause of the death of a victim thereof, the
maximum penalty [of death] herein provided shall be imposed.” (Sec. 14)
(8.) Maintenance of den, dive, or resort for users of regulated drugs where the
victim is a minor or the victim dies
“Notwithstanding the provisions of Section 20 of this Act to the contrary, the
maximum penalty [of death] herein provided shall be imposed in every case where
a regulated drug is administered, delivered or sold to a minor who is allowed to use
the same in such place.
Should a regulated drug be the proximate cause of death of a person using the
same in such den, dive or resort, the maximum penalty herein provided shall be
imposed on the maintainer notwithstanding the provisions of Section 20 of this Act
to the contrary.” (Sec. 15)
(9) Drug offenses if convicted are government officials, employees or officers
including members of police agencies and armed forces
“The maximum penalties [of death] provided for in Sections 3, 4(1), 5(1), 6, 7, 8, 9,
11, 12 and 13 of Article II and Sections 14, 14-A, 14(1), 15-A(1), 16, and 19 of Article
III [of the Dangerous Drugs Act of 1972] shall be imposed, if those found guilty of
any of the same offenses are government officials,
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People vs. Echegaray
employees or officers including members of police agencies and the armed forces.”
(Sec. 19)
(10) Planting of dangerous drugs as evidence in drug offenses with the
mandatory death penalty if convicted are government officials, employees or
officers
“Any such above government official, employee or officer who is found guilty of
‘planting’ any dangerous drugs punished in Sections 3, 4, 7, 8, 9 and 13 of Article
II and Sections 14, 14A, 15, and 16 of Article III (of the Dangerous Drugs Act of
1972) in the person or in the immediate vicinity of another as evidence to implicate
the latter, shall suffer the same penalty as therein provided.” (Sec. 19)
(11) In all the crimes in R.A. No. 7659 in their qualified form
“When in the commission of the crime, advantage was taken by the offender of his
public position, the penalty to be imposed shall be in its maximum [of death]
regardless of mitigating circumstances.
The maximum penalty [of death] shall be imposed if the offense was committed
by any person who belongs to an organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more persons
collaborating, confederating or mutually helping one another for purposes of gain
in the commission of any crime.” (Sec. 23)
It is specifically against the foregoing capital crimes that the test of heinousness
must be squarely applied.
The evil of a crime may take various forms. There are crimes that are, by their
very nature, despicable, either because life was callously taken or the victim is
treated like an animal and utterly dehumanized as to completely disrupt the
normal course of his or her growth as a human being. The right of a person is not
only to live but to live a quality life, and this means that the rest of society is
obligated to respect his or her individual personality, the integrity and the sanctity
of his or her own physical body, and the value he or she puts in his or her own
spiritual, psychological, material and social preferences and needs. Seen in this
light, the capital crimes of kidnapping and serious illegal detention for ransom
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722 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
resulting in the death of the victim or the victim is raped, tortured, or subjected to
dehumanizing acts; destructive arson resulting in death; and drug offenses
involving minors or resulting in the death of the victim in the case of other crimes;
as well as murder, rape, parricide, infanticide, kidnapping and serious illegal
detention where the victim is detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him were made or the victim
is a minor, robbery with homicide, rape or intentional mutilation, destructive
arson, and carnapping where the owner, driver or occupant of the carnapped
vehicle is killed or raped, which are penalized by reclusion perpetua to death, are
clearly heinous by their very nature.
P a g e 16 | 279
 There are crimes, however, in which the abomination lies in the significance
and implications of the subject criminal acts in the scheme of the larger socio-
political and economic context in which the state finds itself to be struggling to
develop and provide for its poor and underprivileged masses. Reeling from decades
of corrupt tyrannical rule that bankrupted the government and impoverished the
population, the Philippine Government must muster the political will to dismantle
the culture of corruption, dishonesty, greed and syndicated criminality that so
deeply entrenched itself in the structures of society and the psyche of the populace.
Terribly lacking the money to provide even the most basic services to its people,
any form of misappropriation or misapplication of government funds translates to
an actual threat to the very existence of government, and in turn, the very survival
of the people it governs over. Viewed in this context, no less heinous are the effects
and repercussions of crimes like qualified bribery, destructive arson resulting in
death, and drug offenses involving government officials, employees or officers, that
their perpetrators must not be allowed to cause further destruction and damage to
society.
We have no doubt, therefore, that insofar as the element of heinousness is
concerned, R.A. No. 7659 has correctly identified crimes warranting the mandatory
penalty of death, As to the other crimes in R.A. No. 7659 punished by reclusion per-
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VOL. 267, FEBRUARY 7, 1997 723
People vs. Echegaray
petua to death, they are admittingly no less abominable than those mandatorily
penalized by death. The proper time to determine their heinousness in
contemplation of law, is when on automatic review, we are called to pass on a death
sentence involving crimes punishable by reclusion perpetua to death under R.A.
No. 7659, with the trial court meting out the death sentence in exercise of judicial
discretion. This is not to say, however, that the aggravating circumstances under
the Revised Penal Code need be additionally alleged as establishing the
heinousness of the crime for the trial court to validly impose the death penalty in
the crimes under R.A. No. 7659 which are punished with the flexible penalty of
reclusion perpetua to death.
In the first place, the 1987 Constitution did not amend or repeal the provisions
of the Revised Penal Code relating to aggravating circumstances. Secondly, R.A.
No. 7659, while it specifies circumstances that generally qualify a crime provided
therein to be punished by the maximum penalty of death, neither amends nor
repeals the aggravating circumstances under the Revised Penal Code. Thus,
construing R.A. No. 7659 in pari materia with the Revised Penal Code, death may
be imposed when: (1) aggravating circumstances attend the commission of the
crime as to make operative the provision of the Revised Penal Code regarding the
imposition of the maximum penalty; and (2) other circumstances attend the
commission of the crime which indubitably characterize the same as heinous in
contemplation of R.A. No. 7659 that justify the imposition of death, albeit the
imposable penalty is reclusion perpetua to death. Without difficulty, we
understand the rationale for the guided discretion granted in the trial court to
recognize circumstances that characterize the commission of the crime as heinous.
CRIMINAL LAW | PENALTIES
Certainly there is an infinity of circumstances that may attend the commission of
a crime to the same extent that there is no telling the evil that man is capable of.
The legislature cannot and need not foresee and inscribe in law each and every
loathsome act man is capable of. It is sufficient thus that R.A. No. 7659 provides
the test and yardstick for the determination of the legal situation war-
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724 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
ranting the imposition of the supreme penalty of death. Needless to say, we are not
unaware of the ever existing danger of abuse of discretion on the part of the trial
court in meting out the death sentence. Precisely to reduce to. nil the possibility of
executing an innocent man or one criminal but not heinously criminal, R.A. No.
7659 is replete with both procedural and substantive safeguards that ensure only
the correct application of the mandate of R.A. No. 7659.
In the course of the congressional debates on the constitutional requirement
that the death penalty be re-imposed for compelling reasons involving heinous
crimes, we note that the main objection to the death penalty bill revolved around
the persistent demand of the abolitionists for a statement of the compelling reason
in each and every heinous crime and statistical proof that such compelling reason
actually exists.
We believe, however, that the elements of heinousness and compulsion are
inseparable and are, in fact, interspersed with each other. Because the subject
crimes are either so revolting and debasing as to violate the most minimum of the
human standards of decency or its effects, repercussions, implications and
consequences so destructive, destabilizing, debilitating, or aggravating in the
context of our socio-political and economic agenda as a developing nation, these
crimes must be frustrated, curtailed and altogether eradicated. There can be no ifs
or buts in the face of evil, and we cannot afford to wait until we rub elbows with it
before grasping it by the ears and thrashing it to its demission.
The abolitionists in congress insisted that all criminal reforms first be pursued
and implemented before the death penalty be re-imposed in case such reforms
prove unsuccessful. They claimed ‘that the only compelling reason contemplated of
by the constitution is that nothing else but the death penalty is left for the
government to resort to that could check the chaos and the destruction that is being
caused by unbridled criminality. Three of our colleagues, are of the opinion that the
compelling reason required by the constitution is that there occurred a dramatic
and significant change in the sociocultural milieu after the suspension of the death
penalty on
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People vs. Echegaray
February 2, 1987 such as an unprecedented rise in the incidence of criminality.
Such are, however, interpretations only of the phrase “compelling reasons” but not
of the conjunctive phrase “compelling reasons involving heinous crimes.” The
imposition of the requirement that there be a rise in the incidence of criminality
because of the suspension of the death penalty, moreover, is an unfair and
P a g e 17 | 279
misplaced demand, for what it amounts to, in fact, is a requirement that the death
penalty first proves itself to be a truly deterrent factor in criminal behavior. If there
was a dramatically higher incidence of criminality during the time that the death
penalty was suspended, that would have proven that the death penalty was indeed
a deterrent during the years before its suspension. Suffice it to say-that the
constitution in the first place did not require that the death penalty be first proven
to be a deterrent; what it requires is that there be compelling reasons involving
heinous crimes.
Article III, Section 19(1) of the 1987 Constitution simply states that Congress,
for compelling reasons involving heinous crimes, may re-impose the death penalty.
Nothing in the said provision imposes a requirement that for a death penalty bill
to be valid, a positive manifestation in the form of a higher incidence of crime
should first be perceived and statistically proven following the suspension of the
death penalty. Neither does the said provision require that the death penalty be
resorted to as a last recourse when all other criminal reforms have failed to abate
criminality in society. It is immaterial and irrelevant that R.A. No. 7659 cites that
there has been an “alarming upsurge of such crimes,” for the same was never
intended by said law to be the yardstick to determine the existence of compelling
reasons involving heinous crimes. Fittingly, thus, what R.A. No. 7659 states is that
“the Congress, in the interest of justice, public order and rule of law, and the need
to rationalize and harmonize the penal sanctions for heinous crimes, finds
compelling reasons to impose the death penalty for said crimes.”
We now proceed to answer accused-appellant’s other ground for attacking the
constitutionality of R.A. No. 7659,
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726 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
i.e., that the death penalty imposed in rape is violative of the constitutional
proscription against cruel, degrading or inhuman punishment.
Accused-appellant first claims that the death penalty is per se a cruel,
degrading or inhuman punishment as ruled by the United States (U.S.) Supreme
Court in Furman v. Georgia.41 To state, however, that the U.S. Supreme Court,
in Furman, categorically ruled that the death penalty is a cruel, degrading or
inhuman punishment, is misleading and inaccurate.
The issue in Furman was not so much death penalty itself but the arbitrariness
pervading the procedures by which the death penalty was imposed on the accused
by the sentencing jury. Thus, the defense theory in Furman centered not so much
on the nature of the death penalty as a criminal sanction but on the discrimination
against the black accused who is meted out the death penalty by a white jury that
is given the unconditional discretion to determine whether or not to impose the
death penalty. In fact, the long road of the American abolitionist movement leading
to the landmark case of Furman was trekked by American civil rights advocates
zealously fighting against racial discrimination. Thus, the U.S. Supreme Court
stated in Furman:
“We cannot say from facts disclosed in these records that these defendants were
sentenced to death because they were black. Yet our task is not restricted to an
CRIMINAL LAW | PENALTIES
effort to divine what motives impelled these death penalties. Rather, we deal with
a system of law and of justice that leaves to the uncontrolled discretion of judges or
juries the determination whether defendants committing these crimes should die x
x x.
xxx
In a Nation committed to equal protection of the laws there is no permissible
‘caste’ aspect of law enforcement. Yet we know that the discretion of judges and
juries in imposing the death penalty enables the penalty to be selectively applied,
feeding prejudices against the accused if he is poor and despised x x x.
xxx
________________
41 408 US 238, 33 L Ed 2d 346, 92 S Ct 2726.
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Thus, these discretionary statutes are unconstitutional in their operation. They are
pregnant with discrimination and discrimination is an ingredient not compatible
with the idea of equal protection of the laws that is implicit in the ban on ‘cruel and
unusual’ punishments.”
Furman, thus, did not outlaw the death penalty because it was cruel and
unusual per se. While the U.S. Supreme Court nullified all discretionary death
penalty statutes in Furman, it did so because the discretion which these statutes
vested in the trial judges and sentencing juries was uncontrolled and without any
parameters, guidelines, or standards intended to lessen, if not altogether eliminate,
the intervention of personal biases, prejudices and discriminatory acts on the part
of the trial judges and sentencing juries.
Consequently, in the aftermath of Furman, when most of the states re-enacted
their death penalty statutes now bearing the procedural checks that were required
by the U.S. Supreme Court, said court affirmed the constitutionality of the new
death penalty statutes in the cases of Gregg v. Georgia,42 Jurek v.
Texas,43 and Profitt v. Florida44
Next, accused-appellant asseverates that the death penalty is a cruel, inhuman
or degrading punishment for the crime of rape mainly because the latter, unlike
murder, does not involve the taking of life. In support of his contention,
accusedappellant largely relies on the ruling of the U.S. Supreme Court in Coker v.
Georgia.45 In Coker, the U.S. Supreme Court ruled as follows:
“x x x It is now settled that the death penalty is not invariably cruel and unusual
punishment within the meaning of the Eighth Amendment; it is not inherently
barbaric or an unacceptable mode of punishment for crime; neither is it always
disproportionate to the crime for which it is imposed. It is also established that
imposing
________________
P a g e 18 | 279
 42 428 US 153, 49 L Ed 2d 859, 96 S Ct 2909.
43 428 US 262, 49 L Ed 2d 929, 96 S Ct 2950.
44 428 US 242, 49 L Ed 2d 913, 96 S Ct 2960.
45 433 US 584, 53 L Ed 2d 982, 97 S Ct 286.
728
728 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
capital punishment, at least for murder, in accordance with the procedures
provided under the Georgia statutes saves the sentence from the infirmities which
led the Court to invalidate the prior Georgia capital punishment statute in Furman
v. Georgia x x x
xxx
In Gregg [v. Georgia] x x x the Court’s judgment was that the death penalty for
deliberate murder was neither the purposeless imposition of severe punishment
nor a punishment grossly disproportionate to the crime. But the Court reserved the
question of the constitutionality of the death penalty when imposed for other
crimes. x x x
That question, with respect to rape of an adult woman, is now before us.
xxx
x x x [T]he public judgment with respect to rape, as reflected in the statutes
providing the punishment for that crime, has been dramatically different. In
reviving death penalty laws to satisfy Furman’s mandate, none of the States that
had not previously authorized death for rape chose to include rape among capital
felonies. Of the 16 States in which rape had been a capital offense, only three
provided the death penalty for rape of an adult woman in their revised statutes—
Georgia, North Carolina, and Louisiana. In the latter two States, the death penalty
was mandatory for those found guilty, and those laws were invalidated by Woodson
and Roberts. When Louisiana and North Carolina, respondent to those decisions,
again revised their capital punishment laws, they reenacted the death penalty for
murder but not for rape; none of the seven other legislatures that to our knowledge
have amended or replaced their death penalty statutes since July 2, 1976, including
four States (in addition to Louisiana and North Carolina) that had authorized the
death sentence for rape prior to 1972 and had reacted to Furman with mandatory
statutes, included rape among the crimes for which death was an authorized
punishment.
xxx
It should be noted that Florida, Mississippi, and Tennessee also authorized the
death penalty in some rape cases, but only where the victim was a child and the
rapist an adult, the Tennessee statute has since been invalidated because the death
sentence was mandatory. x x x The upshot is that Georgia is the sole jurisdiction
in the United States at the present time that authorizes a sentence
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People vs. Echegaray
CRIMINAL LAW | PENALTIES
of death when the rape victim is an adult woman, and only two other jurisdictions
provide capital punishment when the victim is a child.
The current judgment with respect to the death penalty for rape is not wholly
unanimous among state legislatures, but it obviously weighs very heavily on the
side of rejecting capital punishment as a suitable penalty for raping an adult
woman.
x x x [T]he legislative r ejection of capital punishment for rape strongly confirms
our own judgment, which is that death is indeed a disproportionate penalty for the
crime of raping an adult woman.
We do not discount the seriousness of rape as a crime. It is highly reprehensible,
both in a moral sense and in its almost total contempt for the personal integrity
and autonomy of the female victim and for the latter’s privilege of choosing those
with whom intimate relationships are to be established. Short of homicide, it is the
‘ultimate violation of self.’ It is also a violent crime because it normally involves
force, or the threat of force. or intimidation, to overcome the will and the capacity
of the victim to resist. Rape is very often accompanied by physical injury to the
female and can also inflict mental and psychological damage. Because it
undermines the community’s sense of security, there is public injury as well.
Rape is without doubt deserving of serious punishment; but in terms of moral
depravity and of the injury to the person and to the public, it does not compare with
murder, which does involve the unjustified taking of human life. Although it may
be accompanied by another crime, rape by definition does not include the death of
or even the serious injury to another person. The murderer kills; the rapist, if no
more than that, does not. Life is over for the victim of the murderer; for the rape
victim, life may not be nearly so happy as it was, but it is not over and normally is
not beyond repair. We have the abiding conviction that the death penalty, which ‘is
unique in its severity and irrevocability’ x x x is an excessive penalty for the rapist
who, as such, does not take human life.”
The U.S. Supreme Court based its foregoing ruling on two grounds: first, that the
public has manifested its rejection of the death penalty as a proper punishment for
the crime of rape through the willful omission by the state legislatures to include
rape in their new death penalty statutes in the aftermath of Furman; and second,
that rape, while concededly a dastardly contemptuous violation of a woman’s
spiritual in-
730
730 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
tegrity, physical privacy, and psychological balance, does not involve the taking of
life.
Anent the first ground, we fail to see how this could have any bearing on the
Philippine experience and in the context of our own culture.
Anent the second ground, we disagree with the court’s predicate that the gauge
of whether or not a crime warrants the death penalty or not, is the attendance of
the circumstance of death on the part of the victim. Such a premise is in fact an
ennobling of the biblical notion of retributive justice of “an eye for an eye, a tooth
for a tooth.” We have already demonstrated earlier in our discussion of heinous
P a g e 19 | 279
crimes that the forfeiture of life simply because life was taken, never was a defining
essence of the death penalty in the context of our legal history and cultural
experience; rather, the death penalty is imposed in heinous crimes because the
perpetrators thereof have committed unforgivably execrable acts that have so
deeply dehumanized a person or criminal acts with severely destructive effects on
the national efforts to lift the masses from abject poverty through organized
governmental strategies based on a disciplined and honest citizenry, and because
they have so caused irreparable and substantial injury to both their victim and the
society and a repetition of their acts would pose actual threat to the safety of
individuals and the survival of government, they must be permanently prevented
from doing so. At any rate, this court has no doubts as to the innate heinousness of
the crime of rape, as we have held in the case of People v. Cristobal:46
“Rape is the forcible violation of the sexual intimacy of another person. It does
injury to justice and charity. Rape deeply wounds the respect, freedom, and
physical and moral integrity to which every person has a right. It causes grave
damage that can mark the victim for life. It is always an intrinsically evil act x x x
an outrage upon decency and dignity that hurts not only the victim but the society
itself.”
________________
46 G.R. No. 116279, promulgated on January 29, 1996.
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We are not unaware that for all the legal posturings we have so essayed here, at
the heart of the issue of capital punishment is the wistful, sentimental life-and-
death question to which all of us, without thinking, would answer, “life, of course,
over death.” But dealing with the fundamental question of death provides a context
for struggling with even more basic questions, for to grapple with the meaning of
death is, in an indirect way, to ask the meaning of life. Otherwise put, to ask what
the rights are of the dying is to ask what the rights are of the living.
“Capital punishment ought not to be abolished solely because it is substantially
repulsive, if infinitely less repulsive than the acts which invoke it. Yet the
mounting zeal for its abolition seems to arise from a sentimentalized
hyperfastidiousness that seeks to expunge from the society all that appears harsh
and suppressive. If we are to preserve the humane society we will have to retain
sufficient strength of character and will to do the unpleasant in order that
tranquility and civility may rule comprehensively. It seems very likely that capital
punishment is a x x x necessary, if limited factor in that maintenance of social
tranquillity and ought to be retained on this ground. To do otherwise is to indulge
in the luxury of permitting a sense of false delicacy to reign over the necessity of
social survival."47
CRIMINAL LAW | PENALTIES
WHEREFORE, in view of all the foregoing, the Motion for Reconsideration and the
Supplemental Motion for Reconsideration are hereby DENIED48 for LACK OF
MERIT.
________________
47 Donald Atwell Zoll, “A Wistful Goodbye to Capital Punishment,” National
Review, December 3, 1971, pp. 1351–1354.
48 Three members of the Court voted to declare R.A. 7659 unconstitutional
insofar as it reimposes the death penalty. Two of them wrote Separate Opinions,
which are attached as annexes hereto, without indicating the names of the authors
consistent with the Court’s policy that, in death cases, ponentes of opinions—
whether majority or minority—are not to be indicated.
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732 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
SO ORDERED.
Narvasa (C.J.); Padilla, Regalado, Davide,
Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermos
isima, Jr., Panganiban and Torres, Jr., JJ., concur.
SEPARATE OPINION
Time has transformed man into a highly intellectual and civilized, as well as, I wish
to believe, a humane and compassionate, being. The ancient edict of “an eye for an
eye, a tooth for a tooth” has since been abandoned by a society that recognizes the
good in every man and gives a transgressor an opportunity to reform. Somehow,
however, certain vestiges of savage retribution still remain; indeed, the taking of a
human life continues, at least in some penal systems, to be an acceptable
punishment
In this country, the issue of whether or not the State should impose the death
penalty has recently been resolved with the ratification, on 02 February 1987, of
the Constitution by 76.29% of the electorate. Section 19, Article III, thereof, states:
“Sec. 19.(1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the Congress hereafter provides for
it. Any death penalty already imposed shall be reduced to reclusion perpetua”
Ours is a rule of law. The Supreme Court is not a political entity; it can merely
apply and interpret the law. It cannot, and it will not, spare itself from this
constitutionallymandated duty. Death penalty cases are not excepted. In the
discharge of its grave responsibility, nevertheless, the Court must act with greatest
caution and strictest circumspection for there can be no stake that can be higher,
and no penalty that can be graver, than the extinction by the State of human life.
The determination of when to prescribe the death penalty now lies with the
sound discretion of the law-making author-
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People vs. Echegaray
ity, the Congress of the Philippines, subject to the conditions that the fundamental
law has set forth; viz:
1. (1)That there must be compelling reasons to justify the imposition of the
death penalty; and
2. (2)That the capital offense must involve a heinous crime.
It appears to me that the Constitution did not contemplate a simple “reimposition”
of the death penalty to offenses theretofore already provided in the Revised Penal
Code or just because of it.
The term “compelling reasons” should be enough to indicate that there must be
a marked change in the milieu from that which has prevailed at the time of
adoption of the 1987 Constitution, on the one hand, to that which exists at the
enactment of the statute prescribing the death penalty, upon the other hand, that
would make it distinctively inexorable to mandate the death penalty. That milieu
must have turned from bad to worse.
Most importantly, the circumstances that would characterize the “heinous
nature” of the crime and make it so exceptionally offensive as to warrant the death
penalty must be spelled out with great clarity in the law. To venture, in the case of
murder, the crime could become “heinous” within the Constitutional concept when,
to exemplify, the victim is unnecessarily subjected to a painful and excruciating
death, or in the crime of rape when the offended party is callously humiliated or
even brutally killed by the accused.
I submit that, given the circumstances and the law before us, the Constitutional
fiat (now being raised for the first time in the instant Motion for Reconsideration)
in the imposition of the death penalty has not been satisfied.
I, therefore, vote for imposing instead the penalty of reclusion perpetua (the
next lower penalty than death).
734
734 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
SEPARATE OPINION
Death Penalty Law Unconstitutional
In his Supplemental Motion for Reconsideration1 dated August 22, 1996 filed by
his newly-retained counsel,2 the accused raises for the first time a very crucial
ground for his defense: that Republic Act No. 7659, the law reimposing the death
penalty, is unconstitutional. In the Brief and (original) Motion for Reconsideration
filed by his previous counsel,3 this transcendental issue was not brought up. Hence,
it was not passed upon by this Court in its Decision affirming the trial court’s
sentence of death.4
________________
CRIMINAL LAW | PENALTIES
1 It is called “Supplemental” because there was a (main) Motion for
Reconsideration filed by the previous counsel of the accused, which this Court
already denied.
2 The Anti Death Penalty Task Force of the Free Legal Assistance Group—
Pablito V. Sanidad, Jose Manuel I. Diokno, Arno V. Sanidad, Efren Moncupa,
Eduardo R. Abaya and Ma. Victoria I. Diokno—filed its Notice of Appearance dated
August 22, 1996 only on August 23, 1996, after the Per Curiam Decision of this
Court was promulgated on June 25, 1996.
3 Atty. Julian R. Vitug, Jr.
4 The bulk of jurisprudence precludes raising an issue for the first time only on
appeal. See, for instance, Manila Bay Club Corporation vs. Court of Appeals, 249
SCRA 303, October 13, 1995; Manila Bay Club Corporation vs. Court of
Appeals, 245 SCRA 715, July 11, 1995; Securities and Exchange Commission vs.
Court of Appeals, 246 SCRA 738, July 21, 1995. However, the Court resolved to
tackle the question of constitutionality of Republic Act No. 7659 in this case,
anticipating that the same question would be raised anyway in many other
subsequent instances. The Court resolved to determine and dispose of the issue
once and for all, at the first opportunity. To let the issue pass unresolved just
because it was raised after the promulgation of the decision affirming conviction
may result in grave injustice.
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People vs. Echegaray
The Constitution Abolished Death Penalty
Section 19, Article III of the 1987 Constitution provides:
“Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall death penalty be imposed, unless
for compelling reasons involving heinous crimes, the Congress hereafter provides
for it. Any death penalty already imposed shall be reduced to reclusion
perpetua” (Italics supplied)
The second and third sentences of the above provision are new and had not been
written in the 1935, 1973 or even in the 1986 “Freedom Constitution.” They
proscribe the imposition5 of the death penalty “unless for compelling reasons
involving heinous crimes, Congress provides for it,” and reduced “any death penalty
already imposed” to reclusion perpetua. The provision has both a prospective aspect
(it bars the future imposition of the penalty) and a retroactive one (it reduces
imposed capital sentences to the lesser penalty of imprisonment).
This two-fold aspect is significant. It stresses that the Constitution did not
merely suspend the’ imposition of the death penalty, but in fact completely
abolished it from the statute
________________
5 In People vs. Muñoz, 170 SCRA 107, February 9, 1989; the Court, prior to the
enactment and effectivity of RA 7659, ruled by a vote of 9–6 (J. Cruz, ponente,
C.J. Fernan, JJ. Gutierrez, Jr., Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino
P a g e 21 | 279
and Medialdea, concurring) that the death penalty was not abolished but only
prohibited from being imposed. But see also the persuasive Dissenting Opinion of
Mme. Justice Ameurfina Melencio-Herrera (joined by JJ. Narvasa, Paras,
Sarmiento, Cortes and Regalado) who contended that the Constitution totally
abolished the death penalty and removed it from the statute books. People vs.
Muñoz reversed the earlier “abolition” doctrine uniformly held in People v.
Gavarra, 155 SCRA 327, October 30, 1987, (per C.J. Yap); People vs.
Masangkay, 155 SCRA 113, October 27, 1987, (per J. Melencio-Herrera) and People
vs. Atencio, 156 SCRA 242, December 10, 1987 (per C.J. Narvasa). It is time that
these cases are revisited by this Court.
736
736 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
books. The automatic commutation or reduction to reclusion perpetua of any death
penalty extant as of the effectivity of the Constitution clearly recognizes that, while
the conviction of an accused for a capital crime remains, death as a penalty ceased
to exist in our penal laws and thus may no longer be carried out. This is the clear
intent of the framers of our Constitution. As Comm. Bernas exclaimed, 6 "(t)he
majority voted for the constitutional abolition of the death penalty.”
Citing this and other similar pronouncements of the distinguished Concom
delegate, Mme. Justice Ameurfina MelencioHerrera emphasized,7 “It is thus clear
that when Fr. Bernas sponsored the provision regarding the non-imposition of the
death penalty, what he had in mind was the total abolition and removal from the
statute books of the death penalty. This
_______________
6 This quote is taken from I Record of the Constitutional Commission, p. 676
(July 17, 1986) as follows:
“Fr. Bernas:
xxx xxx xxx
“My Collection on this is that there was a division in the Committee not on
whether the death penalty should be abolished or not, but rather on whether the
abolition should be done by the Constitution—in which case it cannot be restored
by the legislature—or left to the legislature. The majority voted for the
constitutional abolition of the death penalty. And the reason is that capital
punishment is inhuman for the convict and his family who are traumatized by the
waiting, even if it is never carried out. There is no evidence that the death penalty
deterred deadly criminals, hence, life should not be destroyed just in the hope that
other lives might be saved. Assuming mastery over the life of another man is just
too presumptuous for any man. The fact that the death penalty as an institution
has been there from time immemorial should not deter us from reviewing it.
Human life is more valuable than an institution intended precisely to serve human
life. So basically, this is the summary of the reasons which were presented in
support of the constitutional abolition of the death penalty. (italics supplied)
7 Dissenting Opinion in People vs. Muñoz, supra, p. 129.
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VOL. 267, FEBRUARY 7, 1997 737
People vs. Echegaray
became the intent of the framers of the Constitution when they approved the
provision and made it a part of the Bill of Rights.” With such abolition as a premise,
restoration thereof becomes an exception to a constitutional mandate. Being an
exception and thus in derogation of the Constitution, it must then be strictly
construed against the State and liberally in favor of the people. 8 In this light, RA
7659 enjoys no presumption of constitutionality.
The Constitution Strictly Limits
Congressional Prerogative to Prescribe Death
To me, it is very clear that the Constitution (1) effectively removed the death
penalty from the then existing statutes but (2) authorized Congress to restore it at
some future time to enable or empower courts to reimpose it on condition that it
(Congress)9 finds “compelling reasons, involving heinous crimes.” The language of
the Constitution is emphatic (even if
________________
8 Thus in People vs. Burgos, 144 SCRA 1, September 4, 1986, we held that a
statute which allows an exception to a constitutional right (against warrantless
arrests) should be strictly construed.
9 In his scholarly Memorandum, Fr. Joaquin G. Bernas, S.J. as amicus
curiae in People vs. Pedro V. Malabago (G.R. No. 115686, December 2, 1996),
vigorously argues that RA 7659 has validly restored the death penalty which may
now be imposed provided that the prosecution proves, and the court is convinced,
that (a) the accused is guilty of a crime designated by RA 7659 as capital, (b) whose
commission is accompanied by aggravating circumstances as defined by Arts, 14
and 15 of the Revised Penal Code, (c) the accompanying aggravating circumstance
must be one which can be characterized by the court as making the crime “heinous,”
and (d) that the execution of the offender is demanded by “compelling reasons”
related to the offense. In other words, according to him, it is the courts—not
Congress—that have the responsibility of determining the heinousness of a crime
and the compelling reason for its imposition upon a particular offender, depending
on the facts of each case. I cannot however subscribe to this view. The
Constitution clearly identifies Congress as the sovereign entity which is given
the onus of fulfilling these two constitutional limitations.
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738 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
“awkward"10): the authority of Congress to “provide for it” is not absolute. Rather,
it is strictly limited:
1. (1)by “compelling reasons” that may arise after the Constitution became
effective; and
P a g e 22 | 279
 2. (2)to crimes which Congress should identify or define or characterize as
“heinous.”
The Constitution inexorably placed upon Congress the burden of determining the
existence of “compelling reasons” and of defining what crimes are “heinous” before
it could exercise its law-making prerogative to restore the death penalty. For
clarity’s sake, may I emphasize that Congress, by law, prescribes the death penalty
on certain crimes; and courts, by their decisions, impose it on individual offenders
found guilty beyond reasonable doubt of committing said crimes.
In the exercise of this fundamental mandate, Congress enacted RA 765911 to
“provide for it” (the death penalty) (1) by amending certain provisions of the
Revised Penal Code;12 (2) by incorporating a new article therein;13 and (3) by
amending certain special laws.14
But RA 7659 did not change the nature or the elements of the crimes stated in
the Penal Code and in the special laws. It merely made the penalty more severe.
Neither did its provi-
________________
10 People vs. Muñoz, supra, p. 121.
11 Which became effective on December 31, 1993, per People vs. Burgos, 234
SCRA 555, 569, July 29, 1994; People vs. Godoy, 250 SCRA 676, December 6,
1995; People vs. Albert, 251 SCRA 136, December 11, 1995.
12 Art. 114—Treason; Art. 123—Qualified Piracy; Art. 246—Parricide; Art.
248—Murder; Art. 255—Infanticide; Art. 267—Kidnapping and Serious Illegal
Detention; Art. 294—Robbery with violence against or intimidation of persons; Art.
320—Destructive Arson; Art. 335—Rape.
13 Art. 211-A on Qualified Bribery.
14 Section 2, RA 7080—Plunder; Secs, 3, 4, 5, 7, 8 and 9 of Article II of RA 6425—
Prohibited Drugs; Secs. 14, 14-A and 15 of Article III of said RA 6425—Carnapping.
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People vs. Echegaray
sions (other than the preamble, which was cast in general terms) discuss or justify
the reasons for the more severe sanction, either collectively for all the offenses or
individually for each of them.
Generally, it merely reinstated the concept of and the method by which the
death penalty had been imposed until February 2, 1987, when the Constitution
took effect as follows: (1) a person is convicted of a capital offense; and (2) the
commission of which was accompanied by aggravating circumstances not
outweighed by mitigating circumstances.
The basic question then is: In enacting RA 7659, did Congress exceed the
limited authority granted it by the Constitution? More legally put: In reviving the
death penalty, did Congress act with grave abuse of discretion or in excess of the
very limited power or jurisdiction conferred on it by Art. III, Sec. 19? The answer,
I respectfully submit, is YES.
CRIMINAL LAW | PENALTIES
Heinous Crimes
To repeat, while the Constitution limited the power of Congress to prescribe the
death penalty ONLY to “heinous” crimes, it did not define or characterize the
meaning of “heinous.” Neither did Congress. As already stated, RA 7659 itself
merely selected some existing crimes for which it prescribed death as an applicable
penalty. It did not give a standard or a characterization by which courts may be
able to appreciate the heinousness of a crime. I concede that Congress was only too
well aware of its constitutionally limited power. In deference thereto, it included a
paragraph in the preambular or “whereas” clauses of RA 7659, as follows:
“WHEREAS, the crimes punishable by death under this Act are heinous for being
grievous, odious and hateful offenses and which, by reason of their inherent or
manifest wickedness, viciousness, atrocity and perversity are repugnant and
outrageous to the common standards and norms of decency and morality in a just,
civilized and ordered society.”
In my humble view, however, the foregoing clause is clearly an insufficient
definition or characterization of what a hei-
740
740 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
nous crime is. It simply and gratuitously declared certain crimes to be “heinous”
without adequately justifying its bases therefor. It supplies no useful, workable,
clear and unambiguous standard by which the presence of heinousness can be
determined. Calling the crimes “grievous, odious and hateful” is not a substitute
for an objective juridical definition. Neither is the description “inherent or manifest
wickedness, viciousness, atrocity and perversity.” Describing blood as blue does not
detract from its being crimson in fact; and renaming gumamela as rose will not arm
it with thorns.
Besides, a preamble is really not an integral part of a law. It is merely an
introduction to show its intent or purposes. It cannot be the origin of rights and
obligations. Where the meaning of a statute is clear and unambiguous, the
preamble can neither expand nor restrict its operation, much less prevail over its
text.15 In this case, it cannot be the authoritative source to show compliance with
the Constitution.
As already alluded to, RA 7659 merely amended certain laws to prescribe death
as the maximum imposable penalty once the court appreciates the presence or
absence of aggravating circumstances.16 There’s nothing really new that Congress
did which it could not have otherwise done had such provision not been included in
our fundamental law. In other words, it just reinstated capital punishment for
crimes which were already punishable with death prior to the
________________
A preamble is not an essential part of a statute. (Agpalo, Statutory
15
Construction, Second Edition 1990; Martin, Statutory Construction, Sixth Edition,
1984). The function of the preamble is to supply reasons and explanation and not
to confer power or determine rights. Hence it cannot be given the effect of enlarging
P a g e 23 | 279
the scope or effect of a statute. (C. Dallas Sands, Statutes and Statutory
Construction, Fourth Edition, Volume IA, §20.03).
16 Under Sec. 11, RA 7659, it appears that death is the mandatory penalty for
rape, regardless of the presence or absence of aggravating or mitigating
circumstances, "(w)hen by reason or on the occasion of the rape, a homicide is
committed,” or when it is “committed with any of the attendant circumstances
enumerated” in said section.
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People vs. Echegaray
effectivity of the 1987 Constitution. With the possible exception of plunder and
qualified bribery,17 no new crimes were introduced by RA 7659. The offenses
punished by death under said law were already so punishable by the Revised Penal
Code18 and by special laws. In short, Sec. 19, Article III of the Constitution did not
have any impact upon the legislative action. It was effectively ignored by Congress
in enacting the capital punishment law.
During the debate on Senate Bill No. 891 which later became RA 7659, Sen.
Jose Lina, in answer to a question of Sen. Ernesto Maceda, wryly said:19
“So we did not go that far from the Revised Penal Code, Mr. President, and from
existing special laws which, before abolition of the death penalty, had already death
as the maximum penalty.”
By merely reimposing capital punishment on the very same crimes which were
already penalized with death prior to the charter’s effectivity, Congress I submit
has not fulfilled its specific and positive constitutional duty. If the Constitutional
Commission intended merely to allow Congress to prescribe death for these very
same crimes, it would not have written Sec. 19 of Article III into the fundamental
law. But the stubborn fact is it did. Verily, the intention to 1) delete the death
penalty from our criminal laws and 2) make its restoration possible only under and
subject to stringent conditions is evident not only from the language of the
Constitution but also from the charter debates on this matter.
________________
While plunder and qualified bribery are “new” capital offenses, RA 7659
17
nonetheless fails to justify why they are considered heinous. In addition, the
specific compelling reasons for the prescribed penalty of death are not laid out by
the statute.
18 In the case of rape, RA 7659 provided certain attendant circumstances which
the prosecution must prove before courts can impose the extreme penalty. Just the
same however, the law did not explain why said circumstances would make the
crimes heinous. Neither did it set forth the compelling reasons therefor.
19 Record of the Senate, First Regular Session, January 18 to March 11, 1993,
Volume III, No. 48, January 25, 1993, p. 122.
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People vs. Echegaray
The critical phrase “unless for compelling reasons involving heinous crimes” was
an amendment introduced by Comm. Christian Monsod. In explaining what
possible crimes could qualify as heinous, he and Comm. Jose Suarez agreed on
“organized murder” or “brutal murder of a rape victim."20 Note
________________
20 I Record of the Constitutional Commission, July 18, 1986, pp. 742–743:
“MR. SUAREZ. The Gentleman advisedly used the words ‘heinous crimes,’
whatever is the pronunciation. Will the Gentleman give examples of ‘heinous
crimes’? For example, would the head of an organized syndicate in dope distribution
or dope smuggling fall within the qualification of a heinous offender such as to
preclude the application of the principle of abolition of death penalty?
MR. MONSOD. Yes, Madam President. That is one of the possible crimes that
would qualify for a heinous crime. Another would be organized murder. In other
words, yesterday there were many arguments for and against, and they all had
merit. But in the contemporary society, we recognize the sacredness of human life
and—I think it was Honorable Laurel who said this yesterday—it is only God who
gives and takes life. However, the voice of the people is also the voice of God, and
we cannot presume to have the wisdom of the ages. Therefore, it is entirely possible
in the future that circumstances may arise which we should not preclude today. We
know that this is a very difficult question. The fact that the arguments yesterday
were quite impassioned and meritorious merely tell us that this is far from a well-
settled issue. At least in my personal opinion, we would like the death penalty to
be abolished. However, in the future we should allow the National Assembly, in its
wisdom and as representatives of the people, to still impose the death penalty for
the common good, in specific cases.
MR. SUAREZ. Thank you. I would like to pursue some more the Gentleman’s
defi-nition of ‘heinous crimes.’ Would the brutal murder of a rape victim be
considered as falling within that classification?
MR. MONSOD. Madam President, yes, particularly, if it is a person in
authority. He would, therefore, add as an ag
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People vs. Echegaray
that the honorable commissioners did not just say “murder” but organized murder;
not just rape but brutal murder of a rape victim. While the debates were
admittedly rather scanty, I believe that the available information shows that, when
deliberating on “heinousness,” the Constitutional Commission did not have in mind
the offenses already existing and already penalized with death. I also believe that
the heinousness clause requires that:
1. 1)the crimes should be entirely new offenses, the elements of which have
an inherent quality, degree or level of perversity, depravity or
viciousness unheard of until then; or
P a g e 24 | 279
 2. 2)even existing crimes, provided some new element or essential ingredient
like “organized” or “brutal” is added to show their utter perversity,
odiousness or malevolence; or
3. 3)the means or method by which the crime, whether new or old, is carried
out evinces a degree or magnitude of extreme violence, evil, cruelty,
atrocity, viciousness as to demonstrate its heinousness.21
For this purpose, Congress could enact an entirely new set of circumstances to
qualify the crime as “heinous,” in the same manner that the presence of treachery
in a homicide aggravates the crime to murder for which a heavier penalty is
prescribed.
Compelling Reasons
Quite apart from requiring the attendant element of heinousness, the Constitution
also directs Congress to determine “compelling reasons” for the revival of the
capital penalty. It
________________
gravating circumstance to the crime the abuse of his position in authority.
MR. SUAREZ. Thank you.”
Some examples of this may be taken by Congress from Richmond vs.
21
Lewis, 506 US 40, like “gratuitous violence” or “needless mutilation” of the victim.
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is true that paragraphs 3 and 4 of the preamble of RA 7659 22 made some attempt
at meeting this requirement. But such effort was at best feeble and
inconsequential. It should be remembered that every word or phrase in the
Constitution is sacred and should never be ignored, cavalierly-treated or brushed
aside. Thus, I believe that the compelling reasons and the characterization of
heinousness cannot be done wholesale but must be shown for each and every crime,
individually and separately.
The words “compelling reasons” were included in the Charter because, in the
words of Comm. Monsod, “in the future, circumstances may arise which we should
not preclude today x x x and that the conditions and the situation (during the
deliberations of the Constitutional Commission) might change for very specific
reasons” requiring the return of the constitutionally-abhorred penalty.
In his sponsorship of House Bill No. 62 which later evolved into RA 7659,
Congressman Pablo Garcia, in answer to questions raised by Representative Edcel
Lagman tried to explain these compelling reasons:23
“MR. LAGMAN. So what are the compelling reasons now, Mr. Speaker? x x x
________________
22 Paragraph 3 & 4 of the preamble reads:
CRIMINAL LAW | PENALTIES
“WHEREAS, due to the alarming upsurge of such crimes which has resulted not
only in the loss of human lives and wanton destruction of property but has also
affected the nation’s efforts towards sustainable economic development and
prosperity while at the same time has undermined the people’s faith in the
Government and the latter’s ability to maintain peace and order in the country;
WHEREAS, the Congress, in the interest of justice, public order and the rule of
law, and the need to rationalize and harmonize the penal sanctions for heinous
crimes, finds compelling reasons to impose the death penalty for said crimes”;
23 Record of the House of Representatives, First Regular Session, 1992–1993,
Volume IV, February 10, 1993, p. 674, italics supplied.
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People vs. Echegaray
MR. GARCIA (P.). The worsening peace and order condition in the country, Mr.
Speaker. That is one.
MR. LAGMAN. So the compelling reason which the distinguished sponsor would
like to justify or serve as an anchor for the justification of the reimposition of
the death penalty is the alleged worsening peace and order situation. The
Gentleman claims that that is one of the compelling reasons. But before we
dissect this particular “compelling reason,” may we know what are the other
compelling reasons, Mr. Speaker?
MR. GARCIA (P.) Justice, Mr. Speaker.
MR. LAGMAN. Justice.
MR. GARCIA (P.). Yes, Mr. Speaker.
MR. LAGMAN. Justice is a compelling reason, Mr. Speaker? Could the Gentleman
kindly elaborate on that answer? Why is justice a compelling reason as if justice
was not obtained at the time the Constitution abolished the death penalty? Any
compelling reason should be a supervening circumstance after 1987.
MR. GARCIA (P.). Mr. Speaker, I have repeatedly said again and again that if one
lives in an organized society governed by law, justice demands that crime be
punished and that the penalty imposed be commensurate with the offense
committed.
MR. LAGMAN. The Gentleman would agree with me that when the Constitution
speaks of the compelling reasons to justify the reimposition of death penalty, it
refers to reasons which would supervene or come after the approval of the 1987
Constitution. Is he submitting that justice, in his own concept of a
commensurate penalty for the offense committed, was not obtained in 1987
when the Constitution abolished the death penalty and the people ratified it?
MR. GARCIA (P.). That is precisely why we are saying that now, under present
conditions, because of the seriousness of the offenses being committed at this
time, justice demands that the appropriate penalty must be meted out for those
who have committed heinous crimes.
xxx xxx xxx
P a g e 25 | 279
 In short, Congressman Garcia invoked the preambular justifications of
“worsening peace and order” and “justice.” With all due respect I submit that these
grounds are not “compelling” enough to
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People vs. Echegaray
justify the revival of state-decreed deaths. In fact, I dare say that these “reasons”
were even non-existent. Statistics from the Philippine National Police show that
the crime volume and crime rate particularly on those legislated capital offenses
did not worsen but in fact declined between 1987, the date when the Constitution
took effect, and 1993, the year when RA 7659 was enacted.
Witness the following debate24 also between Representatives Garcia and
Lagman:
“MR. LAGMAN. Very good, Mr. Speaker. Now, can we go to 1987. Could the
Gentleman from Cebu inform us the volume of the crime of murder in 1987?
MR. GARCIA (P.). The volume of the crime of murder in 1987 is 12,305.
MR. LAGMAN. So, the corresponding crime rate was 21 percent.
MR. GARCIA (P.). Yes, Mr. Speaker.
MR. LAGMAN. That was in 1987. Mr. Speaker, could the distinguished chairman
inform us the volume of murder in 1988?
MR. GARCIA (P.). It was 10,521, Mr. Speaker.
MR. LAGMAN. Or it was a reduction from 12,305 in 1987 to 10,521 in 1988.
Correspondingly, the crime rate in the very year after the abolition of the death
penalty was reduced from 21 percent to 18 percent. Is that correct, Mr. Speaker?
MR. GARCIA (P.). That is correct, Mr. Speaker. Those are the statistics supplied by
the PC.
MR. LAGMAN. Now can we go again to 1987 when the Constitution abolished the
death penalty? May we know from the distinguished Gentleman the volume of
robbery in 1987?
MR. GARCIA (P.). Will the Gentleman state the figure? I will confirm it.
MR. LAGMAN. No. Mr. Speaker, I am asking the question.
MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the crime rate was 40 percent.
________________
24 Record of the House of Representatives, First Regular Session, 1992–1993,
Vol. III, November 10, 1992, p. 448; italics supplied.
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MR. LAGMAN. This was the year immediately after the abolition of the death
penalty. Could the Gentleman tell us the volume of robbery cases in 1988?
MR. GARCIA (P). It was 16,926, Mr. Speaker.
CRIMINAL LAW | PENALTIES
MR. LAGMAN. Obviously, the Gentleman would agree with me. Mr. Speaker that
the volume of robbery cases declined from 22,942 in 1987 or crime rate of 40
percent to 16,926 or a crime rate of 29 percent. Would the Gentleman confirm
that, Mr. Speaker?
MR. GARCIA (P.). This is what the statistics say. I understand we are reading now
from the same document.
MR. LAGMAN. Now, going to homicide, the volume in 1987 was 12,870 or a crime
rate of 22 percent. The volume in 1988 was 11,132 or a crime rate of 19 percent.
Would the Gentleman confirm that, Mr. Speaker?
MR. GARCIA (P.). As I said, Mr. Speaker, we are reading from the same document
and I would not want to say that the Gentleman is misreading the document
that I have here.
MR. LAGMAN. But would the Gentleman confirm that?
MR. GARCIA (P.). The document speaks for itself.”
When interpellated by Sen. Arturo Tolentino, Sen. Jose Lina gave some figures on
the number of persons arrested in regard to drug-related offenses in the year 1987
as compared to 1991:25
“Let me cite this concrete statistics by the Dangerous Drugs Board.
In 1987—this was the year when the death penalty was abolished—the persons
arrested in drug-related cases were 3,062, and the figure dropped to 2,686 in 1988.
By the way, I will furnish my Colleagues with a photocopy of this report.
From 3,062 in 1987, it dropped to 2,686. Again, it increased a bit to 2,862 in
1989. It still decreased to 2,202 in 1990, and it increased again to 2,862 in 1991.
________________
25 Record of the Senate, First Regular Session, January 18 to March 11, 1993,
Volume III, No. 50, January 27, 1993, pp. 176–177.
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But in 1987, when the death penalty was abolished, as far as the drug-related cases
are concerned, the figure continued a downward trend, and there was no death
penalty in this time from, 1988 to 1991."
In a further attempt to show compelling reasons, the proponents of the death
penalty argue that its reimposition “would pose as an effective deterrent against
heinous crimes."26 However no statistical data, no sufficient proof, empirical or
otherwise, have been submitted to show with any conclusiveness the relationship
between the prescription of the death penalty for certain offenses and the
commission or non-commission thereof. This is a theory that can be debated on and
on,27 in the same manner that another proposition—
_______________
P a g e 26 | 279
 26 See “Sponsorship Remarks” of Rep. Manuel Sanchez, Record of the House of
Representatives, November 9,1992, pp. 40–42.
27 Witness, for instance, this interesting exchange between Commissioners
Joaquin Bernas and Napoleon Rama (I Record of the Constitutional Commission,
p. 678):
“FR. BERNAS. When some experts appeared before us and we asked them
if there was evidence to show that the death penalty had deterred the
commission of deadly crimes, none of them was able to say that there was
evidence, conclusive evidence, for that.
MR. RAMA. I am curious. Who are these experts then—social scientists or
penologists or what?
FR. BERNAS. Penologists.
MR. RAMA. Of course, we are aware that there is also another school of
thought here, another set of experts, who would swear that the death penalty
discourages crimes or criminality. Of course, Commissioner Bernas knows that
never in our history has there been a higher incidence of crime. I say that
criminality was at its zenith during the last decade.
FR. BERNAS. Correct, in spite of the existence of the death penalty.
MR. RAMA. Yes, but not necessarily in spite of the existence of the death
penalty. At any rate, does the sponsor think that in removing the death penalty,
it would not affect, one way or another, the crime rate of the country?
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People vs. Echegaray
that the real deterrent to crime is the certainty of immediate arrest, prosecution
and conviction of the culprit without unnecessary risk, expense and inconvenience
to the victim, his heirs or his witnesses—can be argued indefinitely.28 This debate
can last till the academics grow weary of the spoken word, but it would not lessen
the constitutionally-imposed burden of Congress to act within the “heinousness”
and “compelling reasons” limits of its death-prescribing power.
Other Constitutional Rights
Militate Against RA 7659
It should be emphasized that the constitutional ban against the death penalty is
included in our Bill of Rights. As such, it should.—like any other guarantee in favor
of the accused—be zealously protected,29 and any exception thereto meticu-
________________
FR. BERNAS. The position taken by the majority of those who voted in
favor of this provision is that means other than the death penalty should be
used for the prevention of crime.”
28 Cf. Report to the United Nations Committee on Crime Prosecution and
Control, United Nations Social Affairs Division, Crime Prevention and Criminal
Justice Branch, Vienna, 1988, p. 110.
CRIMINAL LAW | PENALTIES
29 Former Chief Justice Enrique M. Fernando, in his book The Bill of Rights,
(Second Edition, 1972, p. 4) states: “A regime of constitutionalism is thus
unthinkable without an assurance of the primacy of a bill of rights. Precisely a
constitution exists to assure that in the discharge of the governmental functions,
the dignity that is the birthright of every human being is duly safeguarded. x x x”
In the context of the role of a bill of rights the vast powers of govern-ment are
clearly to be exercised within the limits set by the constitution, particularly the bill
of rights. In Ermita-Malate Hotel and Motel Operators vs. City Mayor of Manila, (L-
24693, July 31, 1967), it was held that the exercise of police power, insofar as it
may affect the life, liberty or property of any person is subject to judicial inquiry.
The guarantee in Sec. 1 of Article III of the Constitution embraces life, liberty and
property. In the words of Justice Roberto Concepcion in People vs. Hernandez, (99
Phil. 515, 551–2 [1956]), “x x x individual freedom is too basic, too transcendental
and vital in a republican state, like ours, to be denied upon mere general princi
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750 SUPREME COURT REPORTS ANNOTATED
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lously screened. Any doubt should be resolved in favor of the people, particularly
where the right pertains to persons accused of crimes.30 Here the issue is not just
crimes—but capital crimes!
So too, all our previous Constitutions, including the first one ordained at
Malolos, guarantee that "(n)o person shall be deprived of life, liberty or property
without due process of law."31 This primary right of the people to enjoy life—life at
its fullest, life in dignity and honor—is not only reiterated by the 1987 Charter but
is in fact fortified by its other pro-life and pro-human rights provisions. Hence, the
Constitution values the dignity of every human person and guarantees full respect
for human rights,32 expressly prohibits any form of torture33 which is arguably a
lesser penalty than death, emphasizes the individual right to life by giving
protection to the life of the mother and the unborn from the moment of
conception34 and establishes the people’s rights to health, a balanced ecology and
education.35
This Constitutional explosion of concern for man more than property, for people
more than the state, and for life more than mere existence augurs well for the strict
application of the constitutional limits against the revival of death penalty
________________
ples and abstract consideration of public safety. Indeed, the preservation of
liberty is such a major preoccupation of our political system that, not satisfied with
guaranteeing its enjoyment in the very first paragraph of Section (1) of the Bill of
Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8),
(11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection
of several aspects of freedom. x x x” These guarantees are preserved in the 1987
Constitution, according to Fr. Bernas.
30 See, for instance, People vs. Sinatao, 249 SCRA 554, 571, October 25, 1995,
and People vs. Pidia, 249 SCRA 687, 702–703, November 10, 1995.
31 Art. III, Sec. 1.
P a g e 27 | 279
 32 Art. III, Sec. 11.
33 Art. II, Sec. 12(2).
34 Art. II, Sec. 12.
35Art. II, Secs. 15, 16 & 17.
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People vs. Echegaray
as the final and irreversible exaction of society against its perceived enemies.
Indeed, volumes have been written about individual rights to free speech,
assembly and even religion. But the most basic and most important of these rights
is the right to life. Without life, the other rights cease in their enjoyment, utility
and expression.
This opinion would not be complete without a word on the wrenching fact that
the death penalty militates against the poor, the powerless and the marginalized.
The “Profile of 165 Death Row Convicts” submitted by the Free Legal Assistance
Group36 highlights this sad fact:
1. "(1)Since the reimposition of the death penalty, 186 persons 37 have been
sentenced to death. At the end of 1994, there were 24 death penalty
convicts, at the end of 1995, the number rose to 90; an average of seven
(7) convicts per month, double the monthly average of capital sentences
imposed the prior year. From January to June 1996, the number of death
penalty convicts reached 72, an average of 12 convicts per month, almost
double the monthly average of capital sentences imposed in 1995.
2. (2)Of the 165 convicts polled, approximately twenty one percent (21%) earn
between P200 to P2,900 monthly; while approximately twenty seven
percent (27%) earn between P3,000 to P3,999 monthly. Those earning
above P4,000 monthly are exceedingly few: seven percent (7%) earn
between P4,000 to P4,999, four percent (4%)
________________
36 For details, see Annex A of the Memorandum for the Accused-Appellant
dated September 26, 1996 filed by the Free Legal Assistance Group in People vs.
Malabago, G.R. No. 115686, December 2, 1996.
37 The FLAG-submitted Profile states that 186 have been sentenced to death by
trial courts since the effectivity of RA 7659. The Philippine Star issue of December
9, 1996, page 17, however reports that, quoting Sen. Ernesto Herrera, the total
number of death row inmates has gone up to 267, as of November, 1996, of whom
more than one half (139) are rape convicts. Some major dailies (Philippine Daily
Inquirer, Philippine Star, Manila Standard) in their February 3, 1997 issue up the
death row figure to 300, as of the end of January 1997, with 450 as the probable
number at the end of 1997.
752
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People vs. Echegaray
1. earn between P5,000 to P5,999, seven percent (7%) earn between P6,000 to
P6,999, those earning between P7,000 to P15,000 comprise only four
percent (4%), those earning P 15,000 and above only one percent
(1%). Approximately thirteen percent (13%) earn nothing at all, while
approximately two percent (2%) earn subsistence wages with another five
percent (5%) earning variable income. Approximately nine percent (9%)
do not know how much they earn in a month.
2. (3)Thus, approximately two-thirds of the convicts, about 112 of them, earn
below the government-mandated minimum monthly wage of P4,290; ten
(10) of these earn below the official poverty line set by government. Twenty
six (26) earn between P4,500.00 and P11,000.00 monthly, indicating they
belong to the middle class; only one (1) earns P30,000.00 monthly. Nine
(9) convicts earn variable income or earn on a percentage or allowance
basis; fifteen (15) convicts do not know or are unsure of their monthly
income. Twenty two (22) convicts earn nothing at all.
3. (4)In terms of occupation, approximately twenty one percent (21%) are
agricultural workers or workers in animal husbandry\ of these, thirty
(30), or almost one-fifth thereof, are farmers. Thirty five percent (35%)
are in the transport and construction industry, with thirty one (31)
construction workers or workers in allied fields (carpentry, painting,
welding) while twenty seven (27) are transport workers (delivery,
dispatcher, mechanic, tire man, truck helper) with sixteen (16) of them
drivers. Eighteen percent (18%) are in clerical, sales and services
industries, with fourteen (14) sales workers (engaged in buy and sell or
fish, cigarette or rice vendors), twelve (12) service workers (butchers,
beauticians, security guards, shoemakers, tour guides, computer
programmers, radio technicians) and four (4) clerks (janitors, MERALCO
employee and clerk). About four percent (4%) are government
workers, with six (6) persons belonging to the armed services (AFP, PNP
and even CAFGU). Professionals, administrative employee and
executives comprise only three percent (3%), nine percent (9%) are
unemployed.
4. (5)None of the DRC’s use English as their medium of
communication, About forty four percent (44%), or slightly less than
half speak and understand Tagalog; twenty six percent (26%), or about
one-fourth, speak and understand Cebuano. The rest speak and
understand Bicolano, Ilocano, Ilonggo, Kapampangan, Pangasinense and
Waray. One (1) convict is a foreign national and speaks and understand
Niponggo.
5. (6)Approximately twelve percent (12%) graduated from college, about forty
seven percent (47%) finished varying levels of ele
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People vs. Echegaray
1. mentary education with twenty seven (27) graduating from elementary.
About thirty five percent (35%), fifty eight (58) convicts, finished varying
levels of high school, with more than half of them graduating from high
school. Two (2) convicts finished vocational education; nine (9) convicts
did not study at all.”
The foregoing profile based on age, language and socioeconomic situations
sufficiently demonstrates that RA 7659 has militated against the poor and the
powerless in society—those who cannot afford the legal services necessary in
capital crimes, where extensive preparation, investigation, research and
presentation are required. The best example to show the sad plight of the
underprivileged is this very case where the crucial issue of constitutionality was
woefully omitted in the proceedings in the trial court and even before this Court
until the Free Legal Assistance Group belatedly brought it up in the Supplemental
Motion for Reconsideration.
To the poor and unlettered, it is bad enough that the law is complex and written
in a strange, incomprehensible language. Worse still, judicial proceedings are
themselves complicated, intimidating and damning. The net effect of having a
death penalty that is imposed more often than not upon the impecunious is to
engender in the minds of the latter, a sense—unfounded, to be sure, but unhealthy
nevertheless—of the unequal balance of the scales of justice.
Most assuredly, it may be contended that the foregoing arguments, and in
particular, the statistics above-cited, are in a very real sense prone to be
misleading, and that regardless of the socio-economic profile of the DRCs, the law
reviving capital punishment does not in any way single out or discriminate against
the poor, the unlettered or the underprivileged. To put it in another way, as far as
the disadvantaged are concerned, the law would still be complex and written in a
strange and incomprehensible language, and judicial proceedings complicated and
intimidating, whether the ultimate penalty involved be life (sentence) or death.
Another aspect of the whole controversy is that, whatever the penalties set by law,
it seems to me that there will always be a certain class or classes of people in our
society who, by reason of their pov-
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erty, lack of educational attainment and employment opportunities, are
consequently confined to living, working and subsisting in less-than-ideal
environments, amidst less-thangenteel neighbors similarly situated as themselves,
and are therefore inherently more prone to be involved (as victims or perpetrators)
in vices, violence and crime. So from that perspective, the law reviving the death
penalty neither improves or worsens their lot substantially. Or, to be more precise,
CRIMINAL LAW | PENALTIES
such law may even be said to help improve their situation (at least in theory) by
posing a much stronger deterrent to the commission of heinous crimes.
However, such a viewpoint simply ignores the very basic differences that exist
in the situations of the poor and the non-poor. Precisely because the
underprivileged are what they are, they require and deserve a greater degree of
protection and assistance from our laws and Constitution, and from the courts and
the State, so that in spite of themselves, they can be empowered to rise above
themselves and their situation. The basic postulates for such a position are, I think,
simply that everyone ultimately wants to better himself and that we cannot better
ourselves individually to any significant degree if we are unable to advance as an
entire people and nation. All the pro-poor provisions of the Constitution point in
this direction. Yet we are faced with this law that effectively inflicts the ultimate
punishment on none other than the poor and disadvantaged in the greater majority
of cases, and which penalty, being so obviously final and so
irreversibly permanent, erases all hope of reform, of change for the better. This law,
I submit, has no place in our legal, judicial and constitutional firmament.
Epilogue
In sum, I respectfully submit that:
1. (1)The 1987 Constitution abolished the death penalty from our statute
books. It did not merely suspend or prohibit its imposition.
2. (2)The Charter effectively granted a new right: the constitutional right
against the death penalty, which is really a species of the right to life.
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1. (3)Any law reviving the capital penalty must be strictly construed against
the State and liberally in favor of the accused because such a statute
denigrates the Constitution, impinges on a basic right and tends to deny
equal justice to the underprivileged.
2. (4)Every word or phrase in the Constitution is sacred and should never be
ignored, cavalierly-treated or brushed aside.
3. (5)Congressional power to prescribe death is severely limited by two
concurrent requirements:
1. (a)First, Congress must provide a set of attendant circumstances which
the prosecution must prove beyond reasonable doubt, apart from the
elements of the crime and itself. Congress must explain why and how
these circumstances define or characterize the crime as “heinous.”
2. (b)Second, Congress has also the duty of laying out clear and specific
reasons which arose after the effectivity of the Constitution compelling
the enactment of the law. It bears repeating that these requirements are
inseparable. They must both be present in view of the specific
P a g e 29 | 279
 constitutional mandate—“for compelling reasons involving heinous
crimes.” The compelling reason must flow from the heinous nature of the
offense.
1. (6)In every law reviving the capital penalty, the heinousness and
compelling reasons must be set out for each and every crime, and not just
for all crimes generally and collectively.
“Thou shall not kill” is a fundamental commandment to all Christians, as well as
to the rest of the “sovereign Filipino people” who believe in Almighty God. 38 While
the Catholic Church, to which the vast majority of our people belong, acknowledges
the power of public authorities to prescribe the death penalty, it advisedly limits
such prerogative only to “cases of extreme gravity."39 To quote Pope John Paul II
in his
________________
The preamble of the Constitution is theistic. It declares the “sovereign
38
Filipino people’s” imploration of the “aid of Almighty God.”
39 Catechism of the Catholic Church, p. 512, Word and Life Publications:
756
756 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
encyclical Evangelium Vitae (A Hymn to Life),40 “punishment must be carefully
evaluated and decided upon, and ought not
_______________
“2266. Preserving the common good of society requires rendering the aggressor
unable to inflict harm. For this reason the traditional teaching of the Church has
acknowledged as well-founded the right and duty of legitimate public authority to
punish malefactors by means of penalties commensurate with the gravity of the
crime, not excluding, in cases of extreme gravity, the death penalty. For analogous
reasons those holding authority have the right to repel by armed force aggressors
against the community in their charge.
40 Evangelium Vitae, items Nos. 55 and 56, states:
“55. This should not cause surprise: to kill a human being, in whom the image of
God is present, is a particularly serious sin. Only God is the master of life! Yet from
the beginning, faced with the many and often tragic cases which occur in the life of
individuals and society, Christian reflection has sought a fuller and deeper
understanding of what God’s commandment prohibits and prescribes. There are, in
fact, situations in which values proposed by God’s Law seem to involve a genuine
paradox. This happens for example in the case of legitimate defense, in which the
right to protect one’s own life and the duty not to harm someone else’s life are
difficult to reconcile in practice. Certainly, the intrinsic value of life and the duty
to love oneself no less than others are the basis of a true right to self-defense. The
CRIMINAL LAW | PENALTIES
demanding commandment of love of neighbor, set forth in the Old Testament and
confirmed by Jesus, itself presupposes love of oneself as the basis of comparison:
“You shall love your neighbor as yourself (Mk 12:31). Consequently, no one can
renounce the right to self-defense out of lack of love for life or for self. This can only
be done in virtue of a heroic love which deepens and transfigures the love of self
into a radical self-offering, according to the spirit of the Gospel Beatitudes (cf. Mt.
5:38–40). The sublime example of this self-offering is the Lord Jesus himself.
Moreover, legitimate defense can be not only a right but a grave duty for
someone responsible for another’s life, the common good of the family or of the
State.’ Unfortunately it happens that the need to render the aggressor incapable of
causing harm sometimes involves taking his life. In this case,
757
VOL. 267, FEBRUARY 7, 1997 757
People vs. Echegaray
go to the extreme of executing the offender except in cases of absolute necessity: in
other words, when it would not be possible otherwise to defend society x x x (which
is) very rare, if not practically non-existent.”
Although not absolutely banning it, both the Constitution and the Church
indubitably abhor the death penalty, Both are
________________
the fatal outcome is attributable to the aggressor whose action brought it about,
even though he may not be morally responsible because of a lack of the use of
reason.
56. This is the context in which to place the problem of the death penalty. On
this matter there is a growing tendency, both in the Church and in civil society, to
demand that it be applied in a very limited way or even that it be abolished
completely. The problem must be viewed in the context of a system of penal justice
even more in line with human dignity and thus, in the end, with God’s plan for man
and society. The primary purpose of the punishment which society inflicts is “to
redress the disorder caused by the offense.” Public authority must redress the
violation of personal and social rights by im posing on the offender an adequate
punishment for the crime, as a condition for the offender to regain the exercise of
his or her freedom. In this way authority also fulfills the purpose of defending
public order and ensuring people’s safety, while at the same time offering the
offender an incentive and help to change his or her behavior and be rehabilitated.
It is clear that, for these purposes to be achieved, the nature and extent of the
punishment must be carefully evaluated and decided upon, and ought not go to the
extreme of executing the offender except in cases of absolute necessity: in other
words, when it would not be possible otherwise to defend society. Today however,
as a result of steady improvements in the organization of the penal system, such
cases are very rare, if not practically non-existent.
In any event, the principle set forth in the new Catechism of the Catholic
Church remains valid: “lf bloodless means are sufficient to defend human lives
against an aggressor and to protect public order and the safety of persons, public
authority must limit itself to such means, because they better correspond to the
P a g e 30 | 279
concrete conditions of the common good and are more in conformity to the dignity
of the human person,”
758
758 SUPREME COURT REPORTS ANNOTATED
People vs. Echegaray
pro-people and pro-life. Both clearly recognize the primacy of human life over and
above even the state which man created precisely to protect, cherish and defend
him. The Constitution reluctantly allows capital punishment only for “compelling
reasons involving heinous crimes” just as the Church grudgingly permits it only for
reasons of “absolute necessity” involving crimes of “extreme gravity,” which are
very rare and practically non-existent.
In the face of these evident truisms, I ask: Has Congress, in enacting RA 7659,
amply discharged its constitutional burden of proving the existence of “compelling
reasons” to prescribe death against well-defined “heinous” crimes?
I respectfully submit it has not.
WHEREFORE, premises considered, I respectfully vote to grant partially the
Supplemental Motion for Reconsideration and to modify the dispositive portion of
the decision of the trial court by deleting the words “DEATH, as provided for under
RA 7659," and substitute therefor reclusion perpetua. I further vote to declare RA
7659 unconstitutional insofar as it prescribes the penalty of death for the crimes
mentioned in its text.
Motion for reconsideration denied.
Note.—If capital punishment is justified, it serves as a deterrent but if
injudiciously imposed, it generates resentment. (People vs. Godoy, 250 SCRA
676 [1995])
——o0o——
VOL. 315, SEPTEMBER 29, 1999 461
People vs. Gallo
G.R. No. 124736. September 29, 1999.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO GALLO y IGLOSO,
accused-appellant.
Criminal Procedure; Information; The additional attendant circumstances introduced
by Republic Act 7659 should be considered as special qualifying circumstances distinctly
applicable to the crime of rape and if not pleaded as such could only be appreciated as
generic aggravating circumstances.—The Court in the case of People vs. Garcia, speaking
CRIMINAL LAW | PENALTIES
through then, Justice Florenz D. Regalado, ratiocinated that the additional attendant
circumstances introduced by R.A. 7659 should be considered as special qualifying
circumstances distinctly applicable to the crime of rape and, if not pleaded as such, could only
be appreciated as generic aggravating circumstances.
Same; Same; Same; Accused-appellant’s relationship to the victim although proven but
not alleged in the information, cannot be considered to be a qualifying circumstance.—The
above indictment has not specifically alleged that accused-appellant is the victim’s father;
accordingly, accused-appellant’s relationship to the victim, although proven during the trial,
cannot be considered to be a qualifying circumstance.
Same; Same; Court has the authority to suspend the execution of a final judgment or to
cause a modification thereof as and when it becomes imperative in the higher interest of
justice or when supervening events warrant it.—The Court has had the opportunity to declare
in a long line of cases that the tribunal retains control over a case until the full satisfaction of
the final judgment conformably with established legal processes. It has the authority to
suspend the execution of a final judgment or to cause a modification thereof as and when it
becomes imperative in the higher interest of justice or when supervening events warrant it.
AUTOMATIC REVIEW of a decision of the Regional Trial Court of Binangonan, Rizal, Br.
68.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
_______________
*
EN BANC.
462
462 SUPREME COURT REPORTS ANNOTATED
People vs. Gallo
Public Attorney’s Office for accused-appellant.
RESOLUTION
PER CURIAM:
The penalty of death imposed upon accused-appellant Romeo Gallo y Igloso by the Regional
Trial Court, Branch 68, of Binangonan, Rizal, after finding him guilty beyond reasonable
doubt of the crime of qualified rape, was affirmed by this Court in its decision promulgated
on 22 January 1998.
On 24 August 1999, accused-appellant filed a “Motion to Re-open Case (with Leave of
Court)” seeking a modification of the death sentence to reclusion perpetua. Accused-appellant
proffers that the reduction sought by him would be in line with the new Court rulings which
annunciate that the seven attendant circumstances introduced in Section 11 of Republic Act
No. 7659 partake of the nature of qualifying circumstances that must be pleaded in the
indicment in order to warrant the imposition of the penalty.
The Court in the case of People vs. Garcia,1 speaking through then, Justice Florenz D.
Regalado, ratiocinated that the additional attendant circumstances introduced by R.A. 7659
should be considered as special qualifying circumstances distinctly applicable to the crime of
P a g e 31 | 279

rape and, if not pleaded as such, could only be appreciated as generic aggravating
circumstances.2
The Information filed against accused-appellant reads:
“That on or sometime in the period of May, 1994 in the Municipality of Cardona, Province of
Rizal, Philippines and within the jurisdiction of this Honorable Court, the above named
accused, with lewd designs and by means of force or intimidation, did then and there willfully,
unlawfully and feloniously have sexual intercourse with a 13 year old girl, Marites Gallo y
Segovia.”3
_______________
1 281 SCRA 463, 484-489.
2 People vs. Rodico, 249 SCRA 309.
3 Rollo, p. 7.
463
VOL. 315, SEPTEMBER 29, 1999 463
People vs. Gallo
The above indictment has not specifically alleged that accused-appellant is the victim’s father;
accordingly, accused-appellant’s relationship to the victim, although proven during the trial,
cannot be considered to be a qualifying circumstance.4
The next crucial point is whether the Court must now apply retroactively the Garcia
doctrine to the conviction of accused-appellant.
The Court has had the opportunity to declare in a long line of cases that the tribunal
retains control over a case until the full satisfaction of the final judgment conformably with
established legal processes. It has the authority to suspend the execution of a final judgment or
to cause a modification thereof as and when it becomes imperative in the higher interest of
justice or when supervening events warrant it.5
The doctrine declared in People vs. Garcia, and its reiteration in People vs.
Ramos,6 People vs. Ilao,7 and People vs. Medina,8 came only after almost a year from the
promulgation of the instant case.
The Office of the Solicitor General, when requested to comment on the aforesaid 24th
August 1999 motion of accused-appellant, had this to state:
_______________
4 ART. 63. Rules for the application of indivisible penalties.—In all cases in which the
law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any
mitigating or aggravating circumstances that may have attended the commission of the deed.
(Revised Penal Code)
5 Candelaria vs. Cañizares, 4 SCRA 738; Philippine Veterans Bank vs. Intermediate
Appellate Court, 178 SCRA 645; Lipana vs. Development Bank of Rizal, 154 SCRA 257; Lee
vs. De Guzman, 187 SCRA 276; Bachrach Corporation vs. Court of Appeals, G.R. No.
128349, 25 September 1998, 296 SCRA 487; Echegaray vs. Secretary of Justice, G.R. No.
132601, 19 January 1999, 301 SCRA 96.
6 G.R. No. 129349, 25 September 1998, 296 SCRA 559.
7 G.R. No. 129529; 29 September 1998, 296 SCRA 658.
CRIMINAL LAW | PENALTIES
8
G.R. No. 126575, 11 December 1998, 300 SCRA 98.
464
464 SUPREME COURT REPORTS ANNOTATED
People vs. Gallo
“Judicial decisions applying or interpreting the law or the Constitution shall form part of the
legal system of the land (Article 8, Civil Code of the Philippines). Medina, which has the force
and effect of law, forms part of our penal statutes and assumes retroactive effect, being as it is,
favorable to an accused who is not a habitual criminal, and notwithstanding that final sentence
has already been pronounced against him (Article 22, Revised Penal Code).
“Indeed, by operation of law, appellant is rightfully entitled to the beneficial application
of Medina. Accordingly, the Office of the Solicitor General hereby joins appellant’s prayer for
reduction of his sentence from death to reclusion perpetua.”
The Court agrees with the Office of the Solicitor General in its above observations and sees
merit in its stand to join accused-appellant in praying for a modification of the sentence from
death to reclusion perpetua.
WHEREFORE, the motion to re-open the case is GRANTED and the decision sought to
be reconsidered is MODIFIED by imposing on accused-appellant the penalty of reclusion
perpetua in lieu of the death penalty and ordering him to indemnify the victim the amount of
P50,000.00.
Considering that the records of all cases where the death penalty is imposed are forwarded
to the Office of the President in accordance with Section 25 of R.A. 7659, the Court directs the
Clerk of Court to furnish the Office of the President with a copy of this resolution for
appropriate guidance.
SO ORDERED.
Davide,
Jr. (C.J.), Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisi
ma, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.
Motion to re-open case granted; Decision sought to be reconsidered modified.
Note.—Republic Act No. 7659 provides the test and yardstick for the
determination of the legal situation warranting
G.R. No. 196390. September 28, 2011.*
PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA),
petitioner, vs. RICHARD BRODETT and JORGE JOSEPH, respondents.
Forfeiture Proceedings; In a criminal proceeding, the court having jurisdiction
over the offense has the power to order upon conviction of an accused the seizure of
(a) the instruments to commit the crime, including documents, papers, and other
effects that are the necessary means to commit the crime, and (b) contraband, the
ownership or possession of which is not permitted for being illegal; In case of
forfeiture of property for crime, title and ownership of the convict are absolutely
divested and shall pass to the Government, but it is required that the property to be
forfeited must be before the court in such manner that it can be said to be within its
jurisdiction.—It is not open to question that in a criminal proceeding, the court
having jurisdiction over the offense has the power to order upon conviction of an
accused the seizure of (a) the instruments to commit the crime, including
documents, papers, and other effects that are the necessary means to commit the
P a g e 32 | 279
crime; and (b) contraband, the ownership or possession of which is not permitted
for being illegal. As justification for the first, the accused must not profit from his
crime, or must not acquire property or the right to possession of property through
his unlawful act. As justification for the second, to return to the convict from whom
the contraband was taken, in one way or another, is not prudent or proper, because
doing so will give rise to a violation of the law for possessing the contraband again.
Indeed, the court having jurisdiction over the offense has the right to dispose of
property used in the commission of the crime, such disposition being an accessory
penalty to be imposed on the accused, unless the property belongs to a third person
not liable for the offense that it was used as the instrument to commit. In case of
forfeiture of property for crime, title and ownership of the convict are absolutely
divested and shall pass to the Government. But it is required that the property to
be forfeited must be before the court in such manner that it can be said to be within
its jurisdiction.
_______________
* FIRST DIVISION.
340
340 SUPREME COURT REPORTS ANNOTATED
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
Same; Dangerous Drugs Act; A proper court may order the return of property
held solely as evidence should the Government be unreasonably delayed in bringing
a criminal prosecution.—According to the Rules of Court, personal property may be
seized in connection with a criminal offense either by authority of a search warrant
or as the product of a search incidental to a lawful arrest. If the search is by virtue
of a search warrant, the personal property that may be seized may be that which
is the subject of the offense; or that which has been stolen or embezzled and other
proceeds, or fruits of the offense; or that which has been used or intended to be used
as the means of committing an offense. If the search is an incident of a lawful arrest,
seizure may be made of dangerous weapons or anything that may have been used
or may constitute proof in the commission of an offense. Should there be no ensuing
criminal prosecution in which the personal property seized is used as evidence, its
return to the person from whom it was taken, or to the person who is entitled to its
possession is but a matter of course, except if it is contraband or illegal per se. A
proper court may order the return of property held solely as evidence should the
Government be unreasonably delayed in bringing a criminal prosecution. The order
for the disposition of such property can be made only when the case is finally
terminated.
Same; Same; The text of Section 20 of Republic Act No. 9165 relevant to the
confiscation and forfeiture of the proceeds or instruments of the unlawful act is
similar to that of Article 45 of the Revised Penal Code, and the interpretation of the
latter is extended by analogy to the former.—There is no question, for even PDEA
has itself pointed out, that the text of Section 20 of R.A. No. 9165 relevant to the
confiscation and forfeiture of the proceeds or instruments of the unlawful act is
similar to that of Article 45 of the Revised Penal Code, which states: Article
45. Confiscation and Forfeiture of the Proceeds or Instruments of the Crime.—Every
penalty imposed for the commission of a felony shall carry with it the forfeiture of
CRIMINAL LAW | PENALTIES
the proceeds of the crime and the instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in favor
of the Government, unless they be the property of a third person not liable
for the offense, but those articles which are not subject of lawful commerce shall
be destroyed. The Court has interpreted and applied Article 45 of the Revised Penal
Code in People v. Jose, 37 SCRA 450 (1971), concerning the
341
VOL. 658, SEPTEMBER 28, 2011 341
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
confiscation and forfeiture of the car used by the four accused when they
committed the forcible abduction with rape, although the car did not belong to any
of them, holding: xxx Article 45 of the Revised Penal Code bars the confiscation and
forfeiture of an instrument or tool used in the commission of the crime if such “be
the property of a third person not liable for the offense,” it is the sense of this Court
that the order of the court below for the confiscation of the car in question should
be set aside and that the said car should be ordered delivered to the intervenor for
foreclosure as decreed in the judgment of the Court of First Instance of Manila in
replevin case. xxx Such interpretation is extended by analogy to Section 20.
Same; Criminal Law; Dangerous Drugs Act; The determination of whether or
not any article confiscated in relation to the unlawful act would be subject of
forfeiture could be made only when the judgment was to be rendered in the
proceedings.—We note that the RTC granted accused Brodett’s Motion To Return
Non-Drug Evidence on November 4, 2009 when the criminal proceedings were still
going on, and the trial was yet to be completed. Ordering the release of the car at
that point of the proceedings was premature, considering that the third paragraph
of Section 20, supra, expressly forbids the disposition, alienation, or transfer of any
property, or income derived therefrom, that has been confiscated from the accused
charged under R.A. No. 9165 during the pendency of the proceedings in the Regional
Trial Court. Section 20 further expressly requires that such property or income
derived therefrom should remain in custodia legis in all that time and that no bond
shall be admitted for the release of it. Indeed, forfeiture, if warranted pursuant to
either Article 45 of the Revised Penal Code and Section 20 of R.A. No. 9165, would
be a part of the penalty to be prescribed. The determination of whether or not the
car (or any other article confiscated in relation to the unlawful act) would be subject
of forfeiture could be made only when the judgment was to be rendered in the
proceedings. Section 20 is also clear as to this.
Same; Same; Same; The Court rules that henceforth the Regional Trial Courts
shall comply strictly with the provisions of Section 20 of Republic Act No. 9165, and
should not release articles, whether drugs or non-drugs, for the duration of the trial
and before the rendition of the judgment, even if owned by a third person who is not
liable for the unlawful act.—The directive to return the non-drug
342
342 SUPREME COURT REPORTS ANNOTATED
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
evidence has overtaken the petition for review as to render further action
upon it superfluous. Yet, the Court seizes the opportunity to perform its duty to
P a g e 33 | 279
formulate guidelines on the matter of confiscation and forfeiture of non-drug
articles, including those belonging to third persons not liable for the offense, in
order to clarify the extent of the power of the trial court under Section 20 of R.A.
No. 9165. This the Court must now do in view of the question about the confiscation
and forfeiture of non-drug objects being susceptible of repetition in the future. We
rule that henceforth the Regional Trial Courts shall comply strictly with the
provisions of Section 20 of R.A. No. 9165, and should not release articles, whether
drugs or non-drugs, for the duration of the trial and before the rendition of the
judgment, even if owned by a third person who is not liable for the unlawful act.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Alvaro Bernabe Lazaro for petitioner.
Verano Law Firm for respondent Brodett.
Fornier, Fornier, Saño & Lagumbay Law Firm for respondent Joseph.
BERSAMIN, J.:
Objects of lawful commerce confiscated in the course of an enforcement of
the Comprehensive Dangerous Drugs Act of 2002 (Republic Act No. 9165) that are
the property of a third person are subject to be returned to the lawful owner who is
not liable for the unlawful act. But the trial court may not release such objects
pending trial and before judgment.
Antecedents
On April 13, 2009, the State, through the Office of the City Prosecutor of
Muntinlupa City, charged Richard Brodett (Brodett) and Jorge Joseph (Joseph)
with a violation of Sec-
343
VOL. 658, SEPTEMBER 28, 2011 343
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
tion 5, in relation to Section 26(b), of Republic Act No. 9165 1 in the Regional Trial
Court (RTC) in Muntinlupa City, docketed as Criminal Case No. 09-208, the
accusatory portion of the information for which reads as follows:
“That on or about the 19th day of September 2008, in the City of Muntinlupa,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring and confederating together and mutually helping and aiding
each other, they not being authorized by law, did then and there wilfully,
unlawfully, and feloniously sell, trade, deliver and give away to another, sixty (60)
pieces of blue-colored tablets with Motorala (M) logos, contained in six (6) self-
sealing transparent plastic sachets with recorded total net weight of 9.8388 grams,
which when subjected to laboratory examination yielded positive results for
presence of METHAMPHETAMINE, a dangerous drug.”2
Also on April 16, 2009, the State, also through the Office of the City Prosecutor
of Muntinlupa City, filed another information charging only Brodett with a
violation of Section 11 of R.A. No. 9165, docketed as Criminal Case No. 09-209, with
the information alleging:
CRIMINAL LAW | PENALTIES
“That on or about the 19th day of September 2008, in the City of Muntinlupa,
Philippines and within the jurisdiction of this Honorable Court, the above-named
accused, not being authorized by law, did then and there, wilfully, unlawfully, and
feloniously have in his possession, custody and control the following:
a. Four (4) yellow tablets with Playboy logos and ten (10) transparent capsules
containing white powdery substance contained in one self-sealing
transparent plastic sachet having a net weight of 4.9007 grams, which when
subjected to laboratory examination yielded positive results for presence of
METHYLENE DIOXYMETHAMPHETAMINE (MDMA), commonly known
as “Ecstasy,” a dangerous drug;
_______________
1 Comprehensive Dangerous Drugs Act of 2002.
2 Rollo, p. 51.
344
344 SUPREME COURT REPORTS ANNOTATED
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
b.Five (5) self-sealing transparent plastic sachets containing white powdery
substance with total recorded net weight of 1.2235 grams, which when
subjected to laboratory examination yielded positive results for presence of
COCCAINE, a dangerous drug;
c. Five (5) self-sealing transparent plastic sachets containing white powdery
substance, placed in a light-yellow folded paper, with total recorded net
weight of 2.7355 grams, which when subjected to laboratory examination
yielded positive results for presence of COCCAINE, a dangerous drug;
d. Three (3) self-sealing transparent plastic sachets containing dried leaves
with total recorded net weight of 54.5331 grams, which when subjected to
laboratory examination yielded positive results for presence of
TETRAHYDROCANNABINOL, a dangerous drug.”3
In the course of the proceedings in the RTC, on July 30, 2009, Brodett filed
a Motion To Return Non-Drug Evidence. He averred that during his arrest,
Philippine Drug Enforcement Agency (PDEA) had seized several personal non-drug
effects from him, including a 2004 Honda Accord car with license plate no. XPF-
551; and that PDEA refused to return his personal effects despite repeated
demands for their return. He prayed that his personal effects be tendered to the
trial court to be returned to him upon verification.4
On August 27, 2009, the Office of the City Prosecutor submitted its Comment
and Objection,5 proposing thereby that the delivery to the RTC of the listed
personal effects for safekeeping, to be held there throughout the duration of the
trial, would be to enable the Prosecution and the Defense to exhaust their possible
evidentiary value. The Office of the City Prosecutor objected to the return of the
car because it appeared to be the instrument in the commission of the violation
_______________
3 Id., pp. 54-55.
4 Id., pp. 58-61.
P a g e 34 | 279
 5 Id., pp. 63-64.
345
VOL. 658, SEPTEMBER 28, 2011 345
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
of Section 5 of R.A. No. 9165 due to its being the vehicle used in the transaction of
the sale of dangerous drugs.
On November 4, 2009, the RTC directed the release of the car, viz.:
“WHEREFORE, the Director of PDEA or any of its authorized officer or
custodian is hereby directed to: (1) photograph the abovementioned Honda Accord,
before returning the same to its rightful owner Myra S. Brodett and the return
should be fully documented, and (2) bring the personal properties as listed in this
Order of both accused, Richard S. Brodett and Jorge J. Joseph to this court for
safekeeping, to be held as needed.
SO ORDERED.”6
PDEA moved to reconsider the order of the RTC, but its motion was denied on
February 17, 2010 for lack of merit, to wit:
“WHEREFORE, premises considered, the Motion for Reconsideration is hereby
DENIED for lack of merit. The Order of the Court dated November 4, 2009 is
upheld.
SO ORDERED.”7
Thence, PDEA assailed the order of the RTC in the Court of Appeals (CA) by
petition for certiorari, claiming that the orders of the RTC were issued in grave
abuse of discretion amounting to lack or excess of jurisdiction.
On March 31, 2011, the CA promulgated its Decision, 8 dismissing the petition
for certiorari thusly:
_______________
6 Id., p. 107.
7 Id., p. 110.
8 Id., pp. 37-46; penned by Associate Justice Vicente S.E. Veloso, with Associate
Justice Francisco P. Acosta and Associate Justice Ramon A. Cruz, concurring.
346
346 SUPREME COURT REPORTS ANNOTATED
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
“xxxx
Here it is beyond dispute that the Honda Accord subject of this petition is owned
by and registered in the name of Myra S. Brodett, not accused Richard Brodett.
Also, it does not appear from the records of the case that said Myra S. Brodett has
been charged of any crime, more particularly, in the subject cases of possession and
sale of dangerous drugs. Applying Section 20 of the law to the dispute at bar, We
therefore see no cogent reason why the subject Honda Accord may not be exempted
from confiscation and forfeiture.
xxxx
We thus cannot sustain petitioner’s submission that the subject car, being an
instrument of the offense, may not be released to Ms. Brodett and should remain
in custodia legis. The letters of the law are plain and unambiguous. Being so, there
is no room for a contrary construction, especially so that the only purpose of judicial
CRIMINAL LAW | PENALTIES
construction is to remove doubt and uncertainty, matters that are not obtaining
here. More so that the required literal interpretation is consistent with the
Constitutional guarantee that a person may not be deprived of life, liberty or
property without due process of law.
WHEREFORE, the instant petition is DENIED and consequently DISMISSED
for lack of merit.
SO ORDERED.”9
Hence, PDEA appeals.
Issues
Essentially, PDEA asserts that the decision of the CA was not in accord with
applicable laws and the primordial intent of the framers of R.A. No. 9165. 10 It
contends that the CA gravely erred in its ruling; that the Honda Accord car,
registered under the name of Myra S. Brodett (Ms. Brodett), had been seized from
accused Brodett during a legitimate anti-illegal operation and should not be
released from the custody of the law; that the Motion to Return Non-Drug
Evidence did
_______________
9 Id., pp. 44-46.
10 Id., pp. 2-32.
347
VOL. 658, SEPTEMBER 28, 2011 347
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
not intimate or allege that the car had belonged to a third person; and that even if
the car had belonged to Ms. Brodett, a third person, her ownership did not ipso
facto authorize its release, because she was under the obligation to prove to the
RTC that she had no knowledge of the commission of the crime.
In his Comment,11 Brodett counters that the petitioner failed to present any
question of law that warranted a review by the Court; that Section 20 of R.A. No.
9165 clearly and unequivocally states that confiscation and forfeiture of the
proceeds or instruments of the supposed unlawful act in favor of the Government
may be done by PDEA, unless such proceeds or instruments are the property of a
third person not liable for the unlawful act; that PDEA is gravely mistaken in its
reading that the third person must still prove in the trial court that he has no
knowledge of the commission of the crime; and that PDEA failed to exhaust all
remedies before filing the petition for review.
The decisive issue is whether or not the CA erred in affirming the order for the
release of the car to Ms. Brodett.
Ruling
The petition is meritorious.
P a g e 35 | 279
 I tute proof in the commission of an offense.18 Should there be no ensuing criminal
Applicable laws and jurisprudence on releasing
property confiscated in criminal proceedings
It is not open to question that in a criminal proceeding, the court having
jurisdiction over the offense has the power to order upon conviction of an
accused the seizure of (a) the instruments to commit the crime, including
documents, papers, and other effects that are the necessary means to commit the
crime; and (b) contraband, the ownership or posses-
_______________
11 Id., pp. 158-177.
348
348 SUPREME COURT REPORTS ANNOTATED
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
sion of which is not permitted for being illegal. As justification for the first, the
accused must not profit from his crime, or must not acquire property or the right to
possession of property through his unlawful act.12 As justification for the second, to
return to the convict from whom the contraband was taken, in one way or another,
is not prudent or proper, because doing so will give rise to a violation of the law for
possessing the contraband again.13 Indeed, the court having jurisdiction over the
offense has the right to dispose of property used in the commission of the crime,
such disposition being an accessory penalty to be imposed on the accused, unless
the property belongs to a third person not liable for the offense that it was used as
the instrument to commit.14
In case of forfeiture of property for crime, title and ownership of the convict are
absolutely divested and shall pass to the Government.15 But it is required that the
property to be forfeited must be before the court in such manner that it can be said
to be within its jurisdiction.16
According to the Rules of Court, personal property may be seized in connection
with a criminal offense either by authority of a search warrant or as the product of
a search incidental to a lawful arrest. If the search is by virtue of a search warrant,
the personal property that may be seized may be that which is the subject of the
offense; or that which has been stolen or embezzled and other proceeds, or fruits of
the offense; or that which has been used or intended to be used as the means of
committing an offense.17 If the search is an incident of a lawful arrest, seizure may
be made of dangerous weapons or anything that may have been used or may consti-
_______________
12 24 CJS, Criminal Law, § 1733.
13 Villaruz v. Court of First Instance, 71 Phil. 72 (1940).
14 United States v. Bruhez, 28 Phil. 305 (1914).
15 United States v. Surla, 20 Phil. 163 (1911).
16 United States v. Filart and Singson, 30 Phil. 80 (1915).
17 Section 3, Rule 126, Rules of Court.
349
VOL. 658, SEPTEMBER 28, 2011 349
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
CRIMINAL LAW | PENALTIES
prosecution in which the personal property seized is used as evidence, its return to
the person from whom it was taken, or to the person who is entitled to its possession
is but a matter of course,19 except if it is contraband or illegal per se. A proper court
may order the return of property held solely as evidence should the Government be
unreasonably delayed in bringing a criminal prosecution.20 The order for the
disposition of such property can be made only when the case is finally terminated. 21
Generally, the trial court is vested with considerable legal discretion in the
matter of disposing of property claimed as evidence, 22 and this discretion extends
even to the manner of proceeding in the event the accused claims the property was
wrongfully taken from him.23 In particular, the trial court has the power to return
property held as evidence to its rightful owners, whether the property was legally
or illegally seized by the Government.24 Property used as evidence must be
returned once the criminal proceedings to which it relates have terminated, unless
it is then subject to forfeiture or other proceedings.25
_______________
18 Section 13, Rule 126, Rules of Court.
19 Caterpillar, Inc. v. Samson, G.R. No. 164605, October 27, 2006, 505 SCRA
704, 711.
20 24 CJS, Criminal Law, §1733, c., citing United States v. Premises Known as
608 Taylor Ave., Apartment 302, Pittsburgh, Pennsylvania, C.A. Pa., 584 F. 2d
1297.
21 Padilla v. United States, C.A. Cal., 267 F. 2d 351.
22 24 CJS, Criminal Law, §1733, c., citing State v. Allen, 66 N.W. 2d 830, 159
Neb. 314.
23 Id., citing Hutchinson v. Rosetti, 205 N.Y.S. 2d 526, 24 Misc. 2d 949.
24 Id., citing United States v. Estep, C.A. 10(Okl.), 760 F. 2d 1060.
25 Id., citing United States v. Premises Known as 608 Taylor Ave., Apartment
302, Pittsburgh, Pennsylvania, C.A. Pa., 584 F. 2d 1297.
350
350 SUPREME COURT REPORTS ANNOTATED
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
II
Order of release was premature and made
in contravention of Section 20, R.A. No. 9165
It is undisputed that the ownership of the confiscated car belonged to Ms.
Brodett, who was not charged either in connection with the illegal possession and
sale of illegal drugs involving Brodett and Joseph that were the subject of the
criminal proceedings in the RTC, or even in any other criminal proceedings.
In its decision under review, the CA held as follows:
“A careful reading of the above provision shows that confiscation and
forfeiture in drug-related cases pertains to “all the proceeds and properties
derived from the unlawful act, including but not limited to, money and other
assets obtained thereby, and the instruments or tools with which the particular
unlawful act was committed unless they are the property of a third person not
liable for the unlawful act.” Simply put, the law exempts from the effects of
P a g e 36 | 279
confiscation and forfeiture any property that is owned by a third person
who is not liable for the unlawful act.
Here, it is beyond dispute that the Honda Accord subject of this petition
is owned by and registered in the name of Myra S. Brodett, not accused
Richard Brodett. Also, it does not appear from the records of the case that said
Myra S. Brodett has been charged of any crime, more particularly, in the subject
cases of possession and sale of dangerous drugs. Applying Section 20 of the law to
the dispute at bar, We therefore see no cogent reason why the subject Honda Accord
may not be exempted from confiscation and forfeiture.
Basic is the rule in statutory construction that when the law is clear and
unambiguous, the court has no alternative but to apply the same according to its
clear language. The Supreme Court had steadfastly adhered to the doctrine that
the first and fundamental duty of courts is to apply the law according to its express
terms, interpretation being called only when such literal application is impossible.
No process of interpretation or construction need be resorted to where a provision
of law peremptorily calls for application.351
VOL. 658, SEPTEMBER 28, 2011 351
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
We thus cannot sustain petitioner’s submission that the subject car, being an
instrument of the offense, may not be released to Ms. Brodett and should remain
in custodia legis. The letters of the law are plain and unambiguous. Being so, there
is no room for a contrary construction, especially so that the only purpose of judicial
construction is to remove doubt and uncertainty, matters that are not obtaining
here. More so that the required literal interpretation is not consistent with the
Constitutional guarantee that a person may not be deprived of life, liberty or
property without due process of law.”26 (emphases are in the original text)
The legal provision applicable to the confiscation and forfeiture of the proceeds
or instruments of the unlawful act, including the properties or proceeds derived
from illegal trafficking of dangerous drugs and precursors and essential chemicals,
is Section 20 of R.A. No. 9165, which pertinently provides as follows:
“Section 20. Confiscation and Forfeiture of the Proceeds or Instruments of the
Unlawful Act, Including the Properties or Proceeds Derived from the Illegal
Trafficking of Dangerous Drugs and/or Precursors and Essential Chemicals.—
Every penalty imposed for the unlawful importation, sale, trading, administration,
dispensation, delivery, distribution, transportation or manufacture of any
dangerous drug and/or controlled precursor and essential chemical, the cultivation
or culture of plants which are sources of dangerous drugs, and the possession of
any equipment, instrument, apparatus and other paraphernalia for dangerous
drugs including other laboratory equipment, shall carry with it the confiscation and
forfeiture, in favor of the government, of all the proceeds derived from unlawful act,
including, but not limited to, money and other assets obtained thereby, and the
instruments or tools with which the particular unlawful act was committed, unless
they are the property of a third person not liable for the unlawful act, but
those which are not of lawful commerce shall be ordered destroyed without delay
pursuant to the provisions of Section 21 of this Act.
CRIMINAL LAW | PENALTIES
After conviction in the Regional Trial Court in the appropriate criminal case
filed, the Court shall immediately schedule a hearing
_______________
26 Rollo, pp. 44-45.
352
352 SUPREME COURT REPORTS ANNOTATED
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
for the confiscation and forfeiture of all the proceeds of the offense and all the assets
and properties of the accused either owned or held by him or in the name of some
other persons if the same shall be found to be manifestly out of proportion to his/her
lawful income: Provided, however, That if the forfeited property is a vehicle, the
same shall be auctioned off not later than five (5) days upon order of confiscation
or forfeiture.
During the pendency of the case in the Regional Trial Court, no property, or
income derived therefrom, which may be confiscated and forfeited, shall be
disposed, alienated or transferred and the same shall be in custodia legis and no
bond shall be admitted for the release of the same.
The proceeds of any sale or disposition of any property confiscated or forfeited
under this Section shall be used to pay all proper expenses incurred in the
proceedings for the confiscation, forfeiture, custody and maintenance of the
property pending disposition, as well as expenses for publication and court costs.
The proceeds in excess of the above expenses shall accrue to the Board to be used
in its campaign against illegal drugs.”27
There is no question, for even PDEA has itself pointed out, that the text of
Section 20 of R.A. No. 9165 relevant to the confiscation and forfeiture of the
proceeds or instruments of the unlawful act is similar to that of Article 45 of
the Revised Penal Code, which states:
“Article 45. Confiscation and Forfeiture of the Proceeds or Instruments of the
Crime.—Every penalty imposed for the commission of a felony shall carry with it
the forfeiture of the proceeds of the crime and the instruments or tools with which
it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in
favor of the Government, unless they be the property of a third person not
liable for the offense, but those articles which are not subject of lawful commerce
shall be destroyed.”
_______________
27 Emphasis supplied.
353
VOL. 658, SEPTEMBER 28, 2011 353
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
The Court has interpreted and applied Article 45 of the Revised Penal
Code in People v. Jose,28 concerning the confiscation and forfeiture of the car used
by the four accused when they committed the forcible abduction with rape,
although the car did not belong to any of them, holding:
“xxx Article 45 of the Revised Penal Code bars the confiscation and forfeiture of
an instrument or tool used in the commission of the crime if such “be the property
P a g e 37 | 279
of a third person not liable for the offense,” it is the sense of this Court that the
order of the court below for the confiscation of the car in question should be set
aside and that the said car should be ordered delivered to the intervenor for
foreclosure as decreed in the judgment of the Court of First Instance of Manila in
replevin case. xxx”29
Such interpretation is extended by analogy to Section 20, supra. To bar the
forfeiture of the tools and instruments belonging to a third person, therefore, there
must be an indictment charging such third person either as a principal, accessory,
or accomplice. Less than that will not suffice to prevent the return of the tools and
instruments to the third person, for a mere suspicion of that person’s participation
is not sufficient ground for the court to order the forfeiture of the goods seized.30
However, the Office of the City Prosecutor proposed through its Comment and
Objection submitted on August 27, 2009 in the RTC31 that the delivery to the RTC
of the listed personal effects for safekeeping, to be held there throughout the
duration of the trial, would be to enable the Prosecution and the Defense to exhaust
their possible evidentiary value. The Office of the City Prosecutor further objected
to the return of the car because it appeared to be the vehicle used in the transaction
of the sale of dangerous drugs, and, as such,
_______________
28 No. L-28232, February 6, 1971, 37 SCRA 450.
29 Id., p. 482.
30 I Reyes, The Revised Penal Code, 15th Edition, pp. 638-639.
31 Rollo, pp. 63-64.
354
354 SUPREME COURT REPORTS ANNOTATED
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
was the instrument in the commission of the violation of Section 5 of R.A. No. 9165.
On its part, PDEA regards the decision of the CA to be not in accord with
applicable laws and the primordial intent of the framers of R.A. No. 9165, 32 and
contends that the car should not be released from the custody of the law because it
had been seized from accused Brodett during a legitimate anti-illegal operation. It
argues that the Motion to Return Non-Drug Evidence did not intimate or allege that
the car had belonged to a third person; and that even if the car had belonged to Ms.
Brodett, a third person, her ownership did not ipso facto authorize its release,
because she was under the obligation to prove to the RTC that she had no
knowledge of the commission of the crime. It insists that the car is a property
in custodia legis and may not be released during the pendency of the trial.
We agree with PDEA and the Office of the City Prosecutor.
We note that the RTC granted accused Brodett’s Motion To Return Non-Drug
Evidence on November 4, 2009 when the criminal proceedings were still going on,
and the trial was yet to be completed. Ordering the release of the car at that point of
the proceedings was premature, considering that the third paragraph of Section
20, supra, expressly forbids the disposition, alienation, or transfer of any property,
or income derived therefrom, that has been confiscated from the accused charged
under R.A. No. 9165 during the pendency of the proceedings in the Regional Trial
Court. Section 20 further expressly requires that such property or income derived
CRIMINAL LAW | PENALTIES
therefrom should remain in custodia legis in all that time and that no bond shall
be admitted for the release of it.
Indeed, forfeiture, if warranted pursuant to either Article 45 of the Revised
Penal Code and Section 20 of R.A. No. 9165, would be a part of the penalty to be
prescribed. The determi-
_______________
32 Id., pp. 2-32.
355
VOL. 658, SEPTEMBER 28, 2011 355
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
nation of whether or not the car (or any other article confiscated in relation to the
unlawful act) would be subject of forfeiture could be made only when the judgment
was to be rendered in the proceedings. Section 20 is also clear as to this.
The status of the car (or any other article confiscated in relation to the unlawful
act) for the duration of the trial in the RTC as being in custodia legis is primarily
intended to preserve it as evidence and to ensure its availability as such. To release
it before the judgment is rendered is to deprive the trial court and the parties access
to it as evidence. Consequently, that photographs were ordered to be taken of the
car was not enough, for mere photographs might not fill in fully the evidentiary
need of the Prosecution. As such, the RTC’s assailed orders were issued with grave
abuse of discretion amounting to lack or excess of jurisdiction for being in
contravention with the express language of Section 20 of R.A. No. 9165.
Nonetheless, the Court need not annul the assailed orders of the RTC, or
reverse the decision of the CA. It appears that on August 26, 2011 the RTC
promulgated its decision on the merits in Criminal Case No. 09-208 and Criminal
Case No. 09-209, acquitting both Brodett and Joseph and further ordering the
return to the accused of all non-drug evidence except the buy-bust money and the
genuine money, because:
“The failure of the prosecution therefore to establish all the links in the chain
of custody is fatal to the case at bar. The Court cannot merely rely on the
presumption of regularity in the performance of official function in view of the
glaring blunder in the handling of the corpus delicti of these cases. The
presumption of regularity should bow down to the presumption of innocence of the
accused. Hence, the two (2) accused BRODETT and JOSEPH should be as it is
hereby ACQUITTED of the crimes herein charged for Illegal Selling and Illegal
Possession of Dangerous Drugs.
WHEREFORE, premises considered, for failure of the prosecution to prove the
guilt of the accused beyond reasonable doubt, RICHARD BRODETT y SANTOS
and JOR-
356
356 SUPREME COURT REPORTS ANNOTATED
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
GE JOSEPH y JORDANA are ACQUITTED of the crimes charged in Criminal
Case Nos. 09-208 and 09-209.
The subject drug evidence are all ordered transmitted to the Philippine Drug
Enforcement Agency (PDEA) for proper disposition. All the non-drug evidence
P a g e 38 | 279
except the buy bust money and the genuine money are ordered returned
to the accused.
The genuine money used in the buy bust operation as well as the genuine
money confiscated from both accused are ordered escheated in favor of the
government and accordingly transmitted to the National Treasury for proper
disposition.” (emphasis supplied)33
The directive to return the non-drug evidence has overtaken the petition for
review as to render further action upon it superfluous. Yet, the Court seizes the
opportunity to perform its duty to formulate guidelines on the matter of
confiscation and forfeiture of non-drug articles, including those belonging to third
persons not liable for the offense, in order to clarify the extent of the power of the
trial court under Section 20 of R.A. No. 9165.34 This the Court must now do in view
of the question about the confiscation and forfeiture of non-drug objects being
susceptible of repetition in the future.35
We rule that henceforth the Regional Trial Courts shall comply strictly with
the provisions of Section 20 of R.A. No. 9165, and should not release articles,
whether drugs or non-drugs, for the duration of the trial and before the rendition
of the judgment, even if owned by a third person who is not liable for the unlawful
act.
_______________
33 Judgment dated August 26, 2011 rendered in Criminal Case No. 09-208 and
Criminal Case No. 09-209.
34 Salonga v. Cruz Paño, No. L-59524, February 18, 1985, 134 SCRA 438,
463; David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160,
215.
35 David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160,
215; Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA
98; Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577; Sanlakas
v. Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.
357
VOL. 658, SEPTEMBER 28, 2011 357
Philippine Drug Enforcement Agency (PDEA) vs. Brodett
IN VIEW OF THE FOREGOING, the petition for review is DENIED.
The Office of the Court Administrator is directed to disseminate this decision
to all trial courts for their guidance.
SO ORDERED.
Leonardo-De Castro (Actg. Chairperson), Del Castillo,
Perez** and Mendoza,*** JJ., concur.
Petition for review denied.
Notes.—Some might argue that the evidentiary requirement in civil forfeiture
cases has an even higher standard, that is, proof beyond reasonable doubt—
forfeiture of property is in substance a criminal proceeding, and such forfeiture has
been held to partake of the nature of a penalty. (Yuchengo vs. Sandiganbayan, 479
SCRA 1 [2006])
Forfeiture retroacts to the date of the commission of the offense. (Commissioner
of Customs vs. Court of Appeals, 481 SCRA 109 [2006])
CRIMINAL LAW | PENALTIES
——o0o——
VOL. 542, JANUARY 18, 2008 95
Republic vs. Glasgow Credit and Collection Services, Inc.
G.R. No. 170281. January 18, 2008.*
REPUBLIC OF THE PHILIPPINES, represented by the ANTI-MONEY
LAUNDERING COUNCIL, petitioner, vs. GLASGOW CREDIT AND
COLLECTION SERVICES, INC. and CITYSTATE SAVINGS BANK, INC.,
respondents.
Anti-Money Laundering Act of 2001 (R.A. No. 9160); Civil
Forfeiture; Actions; Venue; Motions to Dismiss; The motu proprio dismissal of a
complaint by the trial court on the ground of improper venue is plain error.—
Inasmuch as Glasgow never questioned the venue of the Republic’s complaint for
civil forfeiture against it, how could the trial court have dismissed the complaint
for improper venue? In Dacoycoy v. Intermediate Appellate Court, 195 SCRA 641
(1991), (reiterated in Rudolf Lietz Holdings, Inc. v. Registry of Deeds of Parañaque
City, 344 SCRA 680 (2000)], this Court ruled: The motu proprio dismissal of
petitioner’s complaint by [the] trial court on the ground of improper venue is
plain error… . (emphasis supplied)
Same; Same; Same; Same; The venue of civil forfeiture cases is any Regional
Trial Court of the judicial region where the monetary instrument, property or
proceeds representing, involving, or relating to an unlawful activity or to a money
laundering offense are located.—Under Section 3, Title II of the Rule of Procedure
in Cases of Civil Forfeiture, therefore, the venue of civil forfeiture cases is any RTC
of the judicial region where the monetary instrument, property
_______________
*FIRST DIVISION.
96
96 SUPREME COURT REPORTS ANNOTATED
Republic vs. Glasgow Credit and Collection Services, Inc.
or proceeds representing, involving, or relating to an unlawful activity or to
a money laundering offense are located. Pasig City, where the account sought to be
forfeited in this case is situated, is within the National Capital Judicial Region
(NCJR). Clearly, the complaint for civil forfeiture of the account may be filed in any
RTC of the NCJR. Since the RTC Manila is one of the RTCs of the NCJR, it was a
proper venue of the Republic’s complaint for civil forfeiture of Glasgow’s account.
Same; Same; Two Conditions When Applying for Civil Forfeiture; It is the
preliminary seizure of the property in question which brings it within the reach of
judicial process.—RA 9160, as amended, and its implementing rules and
regulations lay down two conditions when applying for civil forfeiture: (1) when
there is a suspicious transaction report or a covered transaction report deemed
suspicious after investigation by the AMLC and (2) the court has, in a petition filed
for the purpose, ordered the seizure of any monetary instrument or property, in
whole or in part, directly or indirectly, related to said report. It is the preliminary
P a g e 39 | 279
seizure of the property in question which brings it within the reach of the judicial upon the defendant in order to satisfy the requirements of due process. For this
process. It is actually within the court’s possession when it is submitted to the purpose, service may be made by publication as such mode of service is allowed in
process of the court. The injunctive writ issued on August 8, 2003 removed account actions in rem and quasi in rem.
no. CA-005-10-000121-5 from the effective control of either Glasgow or CSBI or
their representatives or agents and subjected it to the process of the court. PETITION for review on certiorari of an order of the Regional Trial Court of
Same; Same; A criminal conviction for an unlawful activity is not a Manila, Br. 47.
prerequisite for the institution of a civil forfeiture proceeding—a finding of guilt for
an unlawful activity is not an essential element of civil forfeiture.—Whether or not The facts are stated in the opinion of the Court.
there is truth in the allegation that account no. CA-005-10-000121-5 contains the 98
proceeds of unlawful activities is an evidentiary matter that may be proven during
98 SUPREME COURT REPORTS ANNOTATED
trial. The complaint, however, did not even have to show or allege that Glasgow
had been implicated in a conviction for, or the commission of, the unlawful activities Republic vs. Glasgow Credit and Collection Services, Inc.
of estafa and violation of the Securities Regulation Code. A criminal conviction for The Solicitor General for petitioner.
an unlawful activity is not a prerequisite for the institution of a civil forfeiture Lilian E. Elepaño and Edward G. Gan for respondent City State Savings
proceeding. Stated otherwise, a finding of guilt for an unlawful activity is not an Bank, Inc.
essential element of civil forfeiture. SEDALAW for Glasgow Credit & Collection Services Inc.
97
VOL. 542, JANUARY 18, 2008 97 CORONA, J.:
Republic vs. Glasgow Credit and Collection Services, Inc.
This is a petition for review1 of the order2 dated October 27, 2005 of the Regional
Same; Same; Dismissal of Cases; While a court can dismiss a case on the
Trial Court (RTC) of Manila, Branch 47, dismissing the complaint for
ground of non prosequitur, the real test for the exercise of such power is whether,
forfeiture3 filed by the Republic of the Philippines, represented by the Anti-Money
under the circumstances, plaintiff is chargeable with want of due diligence in failing
Laundering Council (AMLC) against respondents Glasgow Credit and Collection
to proceed with reasonable promptitude.—In Marahay v. Melicor, 181 SCRA 811
Services, Inc. (Glasgow) and Citystate Savings Bank, Inc. (CSBI).
(1990), this Court ruled: While a court can dismiss a case on the ground of non
On July 18, 2003, the Republic filed a complaint in the RTC Manila for civil
prosequitur, the real test for the exercise of such power is whether, under the
forfeiture of assets (with urgent plea for issuance of temporary restraining order
circumstances, plaintiff is chargeable with want of due diligence in failing to
[TRO] and/or writ of preliminary injunction) against the bank deposits in account
proceed with reasonable promptitude. In the absence of a pattern or scheme
number CA-005-10-000121-5 maintained by Glasgow in CSBI. The case, filed
to delay the disposition of the case or a wanton failure to observe the
pursuant to RA 9160 (the Anti-Money Laundering Act of 2001), as amended, was
mandatory requirement of the rules on the part of the plaintiff, as in the
docketed as Civil Case No. 03-107319.
case at bar, courts should decide to dispense with rather than wield their
Acting on the Republic’s urgent plea for the issuance of a TRO, the executive
authority to dismiss. (emphasis supplied)
judge4 of RTC Manila issued a 72-hour TRO dated July 21, 2003. The case was
Same; Same; Forfeiture proceedings are actions in rem—service may be made
thereafter raffled to Branch 47 and the hearing on the application for issuance of a
by publication; The same principle in forfeiture proceedings under RA 1379 applies
writ of preliminary injunction was set on August 4, 2003.
in cases for civil forfeiture under RA 9160, as amended, since both cases do not
After hearing, the trial court (through then Presiding Judge Marivic T. Balisi-
terminate in the imposition of a penalty but merely in the forfeiture of the properties
Umali) issued an order granting the
either acquired illegally or related to unlawful activities in favor of the State.—
In Republic v. Sandiganbayan, 406 SCRA 190 (2003), this Court declared that the
_______________
rule is settled that forfeiture proceedings are actions in rem. While that case
involved forfeiture proceedings under RA 1379, the same principle applies in cases
for civil forfeiture under RA 9160, as amended, since both cases do not terminate
1 Under Rule 45 of the Rules of Court.
in the imposition of a penalty but merely in the forfeiture of the properties either
2 Penned by Judge Augusto T. Gutierrez. Rollo, pp. 49-58.
3 Docketed as Civil Case No. 03-107319.
acquired illegally or related to unlawful activities in favor of the State. As an
4 Judge Enrico A. Lanzanas.
action in rem, it is a proceeding against the thing itself instead of against the
person. In actions in rem or quasi in rem, jurisdiction over the person of the 99
defendant is not a prerequisite to conferring jurisdiction on the court, provided that VOL. 542, JANUARY 18, 2008 99
the court acquires jurisdiction over the res. Nonetheless, summons must be served Republic vs. Glasgow Credit and Collection Services, Inc.

CRIMINAL LAW | PENALTIES P a g e 40 | 279

issuance of a writ of preliminary injunction. The injunctive writ was issued on
August 8, 2003.
Meanwhile, summons to Glasgow was returned “unserved” as it could no longer
be found at its last known address.
On October 8, 2003, the Republic filed a verified omnibus motion for (a)
issuance of alias summons and (b) leave of court to serve summons by publication.
In an order dated October 15, 2003, the trial court directed the issuance
of alias summons. However, no mention was made of the motion for leave of court
to serve summons by publication.
In an order dated January 30, 2004, the trial court archived the case allegedly
for failure of the Republic to serve the alias summons. The Republic filed an ex
parte omnibus motion to (a) reinstate the case and (b) resolve its pending motion
for leave of court to serve summons by publication.
In an order dated May 31, 2004, the trial court ordered the reinstatement of
the case and directed the Republic to serve the alias summons on Glasgow and
CSBI within 15 days. However, it did not resolve the Republic’s motion for leave of
court to serve summons by publication declaring:
“Until and unless a return is made on the alias summons, any action on [the
Republic’s] motion for leave of court to serve summons by publication would be
untenable if not premature.”
On July 12, 2004, the Republic (through the Office of the Solicitor General [OSG])
received a copy of the sheriff’s return dated June 30, 2004 stating that
the alias summons was returned “unserved” as Glasgow was no longer holding
office at the given address since July 2002 and left no forwarding address.
Meanwhile, the Republic’s motion for leave of court to serve summons by
publication remained unresolved. Thus, on August 11, 2005, the Republic filed a
manifestation and ex parte motion to resolve its motion for leave of court to serve
summons by publication.
100
100 SUPREME COURT REPORTS ANNOTATED
Republic vs. Glasgow Credit and Collection Services, Inc.
On August 12, 2005, the OSG received a copy of Glasgow’s “Motion to Dismiss (By
Way of Special Appearance)” dated August 11, 2005. It alleged that (1) the court
had no jurisdiction over its person as summons had not yet been served on it; (2)
the complaint was premature and stated no cause of action as there was still no
conviction for estafa or other criminal violations implicating Glasgow and (3) there
was failure to prosecute on the part of the Republic.
The Republic opposed Glasgow’s motion to dismiss. It contended that its suit
was an action quasi in rem where jurisdiction over the person of the defendant was
not a prerequisite to confer jurisdiction on the court. It asserted that prior
conviction for unlawful activity was not a precondition to the filing of a civil
forfeiture case and that its complaint alleged ultimate facts sufficient to establish
a cause of action. It denied that it failed to prosecute the case.
On October 27, 2005, the trial court issued the assailed order. It dismissed the
case on the following grounds: (1) improper venue as it should have been filed in
the RTC of Pasig where CSBI, the depository bank of the account sought to be
CRIMINAL LAW | PENALTIES
forfeited, was located; (2) insufficiency of the complaint in form and substance and
(3) failure to prosecute. It lifted the writ of preliminary injunction and directed
CSBI to release to Glasgow or its authorized representative the funds in CA-00510-
000121-5.
Raising questions of law, the Republic filed this petition. On November 23,
2005, this Court issued a TRO restraining Glasgow and CSBI, their agents,
representatives and/or persons acting upon their orders from implementing the
assailed October 27, 2005 order. It restrained Glasgow from removing, dissipating
or disposing of the funds in account no. CA-005-10-000121-5 and CSBI from
allowing any transaction on the said account.
The petition essentially presents the following issue: whether the complaint for
civil forfeiture was correctly dis-
101
VOL. 542, JANUARY 18, 2008 101
Republic vs. Glasgow Credit and Collection Services, Inc.
missed on grounds of improper venue, insufficiency in form and substance and
failure to prosecute.
The Court agrees with the Republic.
THE COMPLAINT WAS FILED IN THE PROPER VENUE
In its assailed order, the trial court cited the grounds raised by Glasgow in support
of its motion to dismiss:
1. 1.That this [c]ourt has no jurisdiction over the person of Glasgow
considering that no [s]ummons has been served upon it, and it has not
entered its appearance voluntarily;
2. 2.That the [c]omplaint for forfeiture is premature because of the absence
of a prior finding by any tribunal that Glasgow was engaged in unlawful
activity: [i]n connection therewith[,] Glasgow argues that the [c]omplaint
states no cause of action; and
3. 3.That there is failure to prosecute, in that, up to now, summons has yet
to be served upon Glasgow.5
But inasmuch as Glasgow never questioned the venue of the Republic’s complaint
for civil forfeiture against it, how could the trial court have dismissed the complaint
for improper venue? In Dacoycoy v. Intermediate Appellate Court 6 (reiterated
in Rudolf Lietz Holdings, Inc. v. Registry of Deeds of Parañaque City),7 this Court
ruled:
“The motu proprio dismissal of petitioner’s complaint by [the] trial court on the
ground of improper venue is plain error….” (emphasis supplied)
At any rate, the trial court was a proper venue.
On November 15, 2005, this Court issued A.M. No. 05-1104-SC, the Rule of
Procedure in Cases of Civil Forfeiture,
_______________
P a g e 41 | 279
 5 Order dated October 27, 2005, supra note 2, p. 49.
6 G.R. No. 74854, 02 April 1991, 195 SCRA 641.
7 398 Phil. 626; 344 SCRA 680 (2000).
102
102 SUPREME COURT REPORTS ANNOTATED
Republic vs. Glasgow Credit and Collection Services, Inc.
Asset Preservation, and Freezing of Monetary Instrument, Property, or Proceeds
Representing, Involving, or Relating to an Unlawful Activity or Money Laundering
Offense under RA 9160, as amended (Rule of Procedure in Cases of Civil
Forfeiture). The order dismissing the Republic’s complaint for civil forfeiture of
Glasgow’s account in CSBI has not yet attained finality on account of the pendency
of this appeal. Thus, the Rule of Procedure in Cases of Civil Forfeiture applies to
the Republic’s complaint.8 Moreover, Glasgow itself judicially admitted that the
Rule of Procedure in Cases of Civil Forfeiture is “applicable to the instant case.” 9
Section 3, Title II (Civil Forfeiture in the Regional Trial Court) of the Rule of
Procedure in Cases of Civil Forfeiture provides:
“Sec. 3. Venue of cases cognizable by the regional trial court.—A petition for civil
forfeiture shall be filed in any regional trial court of the judicial region
where the monetary instrument, property or proceeds representing,
involving, or relating to an unlawful activity or to a money laundering
offense are located; Provided, however, That where all or any portion of the
monetary instrument, property or proceeds is located outside the Philippines, the
petition may be filed in the regional trial court in Manila or of the judicial region
where any portion of the monetary instrument, property, or proceeds is located, at
the option of the petitioner.” (emphasis supplied)
Under Section 3, Title II of the Rule of Procedure in Cases of Civil Forfeiture,
therefore, the venue of civil forfeiture cases is any RTC of the judicial region where
the monetary instrument, property or proceeds representing, involving, or
_______________
8 Section 59, Title IX (Common Provisions) of the Rule of Procedure in Cases of
Civil Forfeiture provides:
Sec. 59. Transitory provision.—This Rule shall apply to all pending civil forfeiture
cases or petitions for freeze order.
9 Memorandum dated January 11, 2007 for Glasgow. Rollo, pp. 329-347.
103
VOL. 542, JANUARY 18, 2008 103
Republic vs. Glasgow Credit and Collection Services, Inc.
relating to an unlawful activity or to a money laundering offense are located. Pasig
City, where the account sought to be forfeited in this case is situated, is within the
National Capital Judicial Region (NCJR). Clearly, the complaint for civil forfeiture
of the account may be filed in any RTC of the NCJR. Since the RTC Manila is one
of the RTCs of the NCJR,10 it was a proper venue of the Republic’s complaint for
civil forfeiture of Glasgow’s account.
CRIMINAL LAW | PENALTIES
THE COMPLAINT WAS SUFFICIENT INFORM AND SUBSTANCE
In the assailed order, the trial court evaluated the Republic’s complaint to
determine its sufficiency in form and substance:
“At the outset, this [c]ourt, before it proceeds, takes the opportunity to examine the
[c]omplaint and determine whether it is sufficient in form and substance.
Before this [c]ourt is a [c]omplaint for Civil Forfeiture of Assets filed by the
[AMLC], represented by the Office of the Solicitor General[,] against Glasgow and
[CSBI] as necessary party. The [c]omplaint principally alleges the following:
1. (a)Glasgow is a corporation existing under the laws of the Philippines,
with principal office address at Unit 703, 7th
_______________
10 Section 3 of BP 129 (the Judiciary Reorganization Act of 1980, as amended)
provides:
Section 13.Creation of Regional Trial Courts.—There are hereby created thirteen
(13) Regional Trial Courts, one for each of the following judicial regions:
xxx xxx xxx
The National Capital Judicial Region, consisting of the cities of Manila,
Quezon, Pasay, Caloocan and Mandaluyong, and the municipalities of Navotas,
Malabon, San Juan, Makati, Pasig, Pateros, Taguig, Marikina, Parañaque, Las
Piñas, Muntinlupa, and Valenzuela[.] (emphasis supplied)
104
104 SUPREME COURT REPORTS ANNOTATED
Republic vs. Glasgow Credit and Collection Services, Inc.
1. Floor, Citystate Center [Building], No. 709 Shaw Boulevard[,] Pasig City;
2. (b)[CSBI] is a corporation existing under the laws of the Philippines, with
principal office at Citystate Center Building, No. 709 Shaw Boulevard,
Pasig City;
3. (c)Glasgow has funds in the amount of P21,301,430.28 deposited with
[CSBI], under CA 005-10-000121-5;
4. (d)As events have proved, aforestated bank account is related to the
unlawful activities of Estafa and violation of Securities Regulation Code;
5. (e)The deposit has been subject of Suspicious Transaction Reports;
6. (f)After appropriate investigation, the AMLC issued Resolutions No. 094
(dated July 10, 2002), 096 (dated July 12, 2002), 101 (dated July 23,
2002), and 108 (dated August 2, 2002), directing the issuance of freeze
orders against the bank accounts of Glasgow;
7. (g)Pursuant to said AMLC Resolutions, Freeze Orders Nos. 008-010, 011
and 013 were issued on different dates, addressed to the concerned
banks;
8. (h)The facts and circumstances plainly showing that defendant Glasgow’s
bank account and deposit are related to the unlawful activities of Estafa
P a g e 42 | 279
 and violation of Securities Regulation Code, as well as to a money
laundering offense [which] [has] been summarized by the AMLC in its
Resolution No. 094; and
9. (i)Because defendant Glasgow’s bank account and deposits are related to
the unlawful activities of Estafa and violation of Securities Regulation
Code, as well as [to] money laundering offense as aforestated, and being
the subject of covered transaction reports and eventual freeze orders, the
same should properly be forfeited in favor of the government in
accordance with Section 12, R.A. 9160, as amended.”11
In a motion to dismiss for failure to state a cause of action, the focus is on the
sufficiency, not the veracity, of the material
_______________
11Order dated October 27, 2005, supra note 2, pp. 52-53.
105
VOL. 542, JANUARY 18, 2008 105
Republic vs. Glasgow Credit and Collection Services, Inc.
allegations.12 The determination is confined to the four corners of the complaint
and nowhere else.13
“In a motion to dismiss a complaint based on lack of cause of action, the question
submitted to the court for determination is the sufficiency of the allegations made
in the complaint to constitute a cause of action and not whether those allegations
of fact are true, for said motion must hypothetically admit the truth of the facts
alleged in the complaint.
The test of the sufficiency of the facts alleged in the complaint is
whether or not, admitting the facts alleged, the court could render a valid
judgment upon the same in accordance with the prayer of the
complaint.”14 (emphasis ours)
In this connection, Section 4, Title II of the Rule of Procedure in Cases of Civil
Forfeiture provides:
“Sec. 4. Contents of the petition for civil forfeiture.—The petition for civil forfeiture
shall be verified and contain the following allegations:
1. (a)The name and address of the respondent;
2. (b)A description with reasonable particularity of the monetary instrument,
property, or proceeds, and their location; and
3. (c)The acts or omissions prohibited by and the specific provisions of the
Anti-Money Laundering Act, as amended, which are alleged to be the
grounds relied upon for the forfeiture of the monetary instrument,
property, or proceeds; and
4. [(d)]The reliefs prayed for.
Here, the verified complaint of the Republic contained the following allegations:
CRIMINAL LAW | PENALTIES
_______________
Malicdem v. Flores, G.R. No. 151001, 08 September 2006, 501 SCRA 248.
12
Id.
13
14 Id., citing Balo v. Court of Appeals, G.R. No. 129704, 30 September 2005, 471
SCRA 227.
106
106 SUPREME COURT REPORTS ANNOTATED
Republic vs. Glasgow Credit and Collection Services, Inc.
1. (a)the name and address of the primary defendant therein, Glasgow;15
2. (b)a description of the proceeds of Glasgow’s unlawful activities with
particularity, as well as the location thereof, account no. CA-005-10-
000121-5 in the amount of P21,301,430.28 maintained with CSBI;
3. (c)the acts prohibited by and the specific provisions of RA 9160, as
amended, constituting the grounds for the forfeiture of the said proceeds.
In particular, suspicious transaction reports showed that Glasgow
engaged in unlawful activities of estafa and violation of the Securities
Regulation Code (under Section 3(i)(9) and (13), RA 9160, as amended);
the proceeds of the unlawful activities were transacted and deposited
with CSBI in account no. CA-005-10-000121-5 thereby making them
appear to have originated from legitimate sources; as such, Glasgow
engaged in money laundering (under Section 4, RA 9160, as amended);
and the AMLC subjected the account to freeze order and
4. (d)the reliefs prayed for, namely, the issuance of a TRO or writ of
preliminary injunction and the forfeiture of the account in favor of the
government as well as other reliefs just and equitable under the
premises.
The form and substance of the Republic’s complaint substantially conformed with
Section 4, Title II of the Rule of Procedure in Cases of Civil Forfeiture.
Moreover, Section 12(a) of RA 9160, as amended, provides:
“SEC. 12. Forfeiture Provisions.—
(a) Civil Forfeiture.—When there is a covered transaction report made, and the
court has, in a petition filed for the purpose ordered seizure of any monetary
instrument or property, in whole or
_______________
15With CSBI impleaded as a co-defendant for being a necessary party.
107
VOL. 542, JANUARY 18, 2008 107
Republic vs. Glasgow Credit and Collection Services, Inc.
in part, directly or indirectly, related to said report, the Revised Rules of Court on
civil forfeiture shall apply.”
P a g e 43 | 279
In relation thereto, Rule 12.2 of the Revised Implementing Rules and Regulations
of RA 9160, as amended, states:
RULE 12
Forfeiture Provisions
xxx xxx xxx
Rule 12.2. When Civil Forfeiture May be Applied.—When there is a
SUSPICIOUS TRANSACTION REPORT OR A COVERED TRANSACTION
REPORT DEEMED SUSPICIOUS AFTER INVESTIGATION BY THE AMLC, and
the court has, in a petition filed for the purpose, ordered the seizure of any
monetary instrument or property, in whole or in part, directly or indirectly, related
to said report, the Revised Rules of Court on civil forfeiture shall apply.
RA 9160, as amended, and its implementing rules and regulations lay down two
conditions when applying for civil forfeiture:
1. (1)when there is a suspicious transaction report or a covered transaction
report deemed suspicious after investigation by the AMLC and
2. (2)the court has, in a petition filed for the purpose, ordered the seizure of
any monetary instrument or property, in whole or in part, directly or
indirectly, related to said report.
It is the preliminary seizure of the property in question which brings it within the
reach of the judicial process.16 It is actually within the court’s possession when it is
submitted to the process of the court.17 The injunctive writ issued on August 8, 2003
removed account no. CA-005-10-000121-5 from the effective control of either
Glasgow or CSBI or their repre-
_______________
1636 Am Jur 2d, Forfeiture, Section 30.
17Id., Section 28.
108
108 SUPREME COURT REPORTS ANNOTATED
Republic vs. Glasgow Credit and Collection Services, Inc.
sentatives or agents and subjected it to the process of the court.
Since account no. CA-005-10-000121-5 of Glasgow in CSBI was (1) covered by
several suspicious transaction reports and (2) placed under the control of the trial
court upon the issuance of the writ of preliminary injunction, the conditions
provided in Section 12(a) of RA 9160, as amended, were satisfied. Hence, the
Republic, represented by the AMLC, properly instituted the complaint for civil
forfeiture.
Whether or not there is truth in the allegation that account no. CA-005-10-
000121-5 contains the proceeds of unlawful activities is an evidentiary matter that
may be proven during trial. The complaint, however, did not even have to show or
CRIMINAL LAW | PENALTIES
allege that Glasgow had been implicated in a conviction for, or the commission of,
the unlawful activities of estafa and violation of the Securities Regulation Code.
A criminal conviction for an unlawful activity is not a prerequisite for the
institution of a civil forfeiture proceeding. Stated otherwise, a finding of guilt for
an unlawful activity is not an essential element of civil forfeiture.
Section 6 of RA 9160, as amended, provides:
“SEC. 6. Prosecution of Money Laundering.—
1. (a)Any person may be charged with and convicted of both the offense of
money laundering and the unlawful activity as herein defined.
2. (b)Any proceeding relating to the unlawful activity shall be given
precedence over the prosecution of any offense or violation under this
Act without prejudice to the freezing and other remedies
provided.” (emphasis supplied)
Rule 6.1 of the Revised Implementing Rules and Regulations of RA 9160, as
amended, states:
109
VOL. 542, JANUARY 18, 2008 109
Republic vs. Glasgow Credit and Collection Services, Inc.
Rule 6.1. Prosecution of Money Laundering—
1. (a)Any person may be charged with and convicted of both the offense of
money laundering and the unlawful activity as defined under Rule 3(i) of
the AMLA.
2. (b)Any proceeding relating to the unlawful activity shall be given
precedence over the prosecution of any offense or violation under the
AMLA without prejudice to the application ex-parte by the AMLC to
the Court of Appeals for a freeze order with respect to the monetary
instrument or property involved therein and resort to other remedies
provided under the AMLA, the Rules of Court and other
pertinent laws and rules.” (emphasis supplied)
Finally, Section 27 of the Rule of Procedure in Cases of Civil Forfeiture provides:
“Sec. 27. No prior charge, pendency or conviction necessary.—No prior criminal
charge, pendency of or conviction for an unlawful activity or money
laundering offense is necessary for the commencement or the resolution of a
petition for civil forfeiture.” (emphasis supplied)
Thus, regardless of the absence, pendency or outcome of a criminal prosecution for
the unlawful activity or for money laundering, an action for civil forfeiture may be
separately and independently prosecuted and resolved.
THERE WAS NO FAILURE TO PROSECUTE
The trial court faulted the Republic for its alleged failure to prosecute the case.
Nothing could be more erroneous.
P a g e 44 | 279
 Immediately after the complaint was filed, the trial court ordered its deputy
sheriff/process server to serve summons and notice of the hearing on the application
for issuance of TRO and/or writ of preliminary injunction. The subpoena to Glasgow
was, however, returned unserved as Glasgow “could no longer be found at its given
address” and had moved out of the building since August 1, 2002.
110
110 SUPREME COURT REPORTS ANNOTATED
Republic vs. Glasgow Credit and Collection Services, Inc.
Meanwhile, after due hearing, the trial court issued a writ of preliminary
injunction enjoining Glasgow from removing, dissipating or disposing of the subject
bank deposits and CSBI from allowing any transaction on, withdrawal, transfer,
removal, dissipation or disposition thereof.
As the summons on Glasgow was returned “unserved,” and considering that its
whereabouts could not be ascertained despite diligent inquiry, the Republic filed a
verified omnibus motion for (a) issuance of alias summons and (b) leave of court to
serve summons by publication on October 8, 2003. While the trial court issued
an alias summons in its order dated October 15, 2003, it kept quiet on the prayer
for leave of court to serve summons by publication.
Subsequently, in an order dated January 30, 2004, the trial court archived the
case for failure of the Republic to cause the service of alias summons. The Republic
filed an ex parte omnibus motion to (a) reinstate the case and (b) resolve its pending
motion for leave of court to serve summons by publication.
In an order dated May 31, 2004, the trial court ordered the reinstatement of
the case and directed the Republic to cause the service of the alias summons on
Glasgow and CSBI within 15 days. However, it deferred its action on the Republic’s
motion for leave of court to serve summons by publication until a return was made
on the alias summons.
Meanwhile, the Republic continued to exert efforts to obtain information from
other government agencies on the whereabouts or current status of respondent
Glasgow if only to save on expenses of publication of summons. Its efforts, however,
proved futile. The records on file with the Securities and Exchange Commission
provided no information. Other inquiries yielded negative results.
On July 12, 2004, the Republic received a copy of the sheriff’s return dated June
30, 2004 stating that the alias summons had been returned “unserved” as Glasgow
was no longer holding office at the given address since July 2002 and left no
forwarding address. Still, no action was taken by the trial
111
VOL. 542, JANUARY 18, 2008 111
Republic vs. Glasgow Credit and Collection Services, Inc.
court on the Republic’s motion for leave of court to serve summons by publication.
Thus, on August 11, 2005, the Republic filed a manifestation and ex parte motion
to resolve its motion for leave of court to serve summons by publication.
It was at that point that Glasgow filed a motion to dismiss by way of special
appearance which the Republic vigorously opposed. Strangely, to say the least, the
trial court issued the assailed order granting Glasgow’s motion.
CRIMINAL LAW | PENALTIES
Given these circumstances, how could the Republic be faulted for failure to
prosecute the complaint for civil forfeiture? While there was admittedly a delay in
the proceeding, it could not be entirely or primarily ascribed to the Republic. That
Glasgow’s whereabouts could not be ascertained was not only beyond the Republic’s
control, it was also attributable to Glasgow which left its principal office address
without informing the Securities and Exchange Commission or any official
regulatory body (like the Bureau of Internal Revenue or the Department of Trade
and Industry) of its new address. Moreover, as early as October 8, 2003, the
Republic was already seeking leave of court to serve summons by publication.
In Marahay v. Melicor,18 this Court ruled:
“While a court can dismiss a case on the ground of non prosequitur, the real test for
the exercise of such power is whether, under the circumstances, plaintiff is
chargeable with want of due diligence in failing to proceed with reasonable
promptitude. In the absence of a pattern or scheme to delay the disposition
of the case or a wanton failure to observe the mandatory requirement of
the rules on the part of the plaintiff, as in the case at bar, courts should
decide to dispense with rather than wield their authority to dismiss.”
(emphasis supplied)
We see no pattern or scheme on the part of the Republic to delay the disposition of
the case or a wanton failure to observe the mandatory requirement of the rules.
The trial court
_______________
18G.R. No. 44980, 06 February 1990, 181 SCRA 811.
112
112 SUPREME COURT REPORTS ANNOTATED
Republic vs. Glasgow Credit and Collection Services, Inc.
should not have so eagerly wielded its power to dismiss the Republic’s complaint.
SERVICE OF SUMMONS MAY BE BY PUBLICATION
In Republic v. Sandiganbayan,19 this Court declared that the rule is settled that
forfeiture proceedings are actions in rem. While that case involved forfeiture
proceedings under RA 1379, the same principle applies in cases for civil forfeiture
under RA 9160, as amended, since both cases do not terminate in the imposition of
a penalty but merely in the forfeiture of the properties either acquired illegally or
related to unlawful activities in favor of the State.
As an action in rem, it is a proceeding against the thing itself instead of against
the person.20 In actions in rem or quasi in rem, jurisdiction over the person of the
defendant is not a prerequisite to conferring jurisdiction on the court, provided that
the court acquires jurisdiction over the res.21 Nonetheless, summons must be
served upon the defendant in order to satisfy the requirements of due process.22 For
this purpose, service may be made by publication as such mode of service is allowed
in actions in rem and quasi in rem.23
In this connection, Section 8, Title II of the Rule of Procedure in Cases of Civil
Forfeiture provides:
P a g e 45 | 279
“Sec. 8. Notice and manner of service.—(a) The respondent shall be given notice of
the petition in the same manner as service of summons under Rule 14 of the Rules
of Court and the following rules:
_______________
19 Republic v. Sandiganbayan, 461 Phil. 598; 406 SCRA 190 (2003).
20 Id.
21 Gomez v. Court of Appeals, G.R. No. 127692, 10 March 2004, 425 SCRA 98.
22 Id.
23 Sps. Jose v. Sps. Boyon, 460 Phil. 354; 414 SCRA 216 (2003).
113
VOL. 542, JANUARY 18, 2008
Republic vs. Glasgow Credit and Collection Services, Inc.
1. 1.The notice shall be served on respondent personally, or by any other
means prescribed in Rule 14 of the Rules of Court;
2. 2.The notice shall contain: (i) the title of the case; (ii) the docket number;
(iii) the cause of action; and (iv) the relief prayed for; and
3. 3.The notice shall likewise contain a proviso that, if no comment or
opposition is filed within the reglementary period, the court shall hear
the case ex parte and render such judgment as may be warranted by the
facts alleged in the petition and its supporting evidence.
(b) Where the respondent is designated as an unknown owner or whenever his
whereabouts are unknown and cannot be ascertained by diligent inquiry,
service may, by leave of court, be effected upon him by publication of the
notice of the petition in a newspaper of general circulation in such places
and for such time as the court may order. In the event that the cost of
publication exceeds the value or amount of the property to be forfeited by ten
percent, publication shall not be required.” (emphasis supplied)
WHEREFORE, the petition is hereby GRANTED. The October 27, 2005 order of
the Regional Trial Court of Manila, Branch 47, in Civil Case No. 03-107319 is SET
ASIDE. The August 11, 2005 motion to dismiss of Glasgow Credit and Collection
Services, Inc. is DENIED. And the complaint for forfeiture of the Republic of the
Philippines, represented by the Anti-Money Laundering Council, is REINSTATED.
The case is hereby REMANDED to the Regional Trial Court of Manila, Branch
47 which shall forthwith proceed with the case pursuant to the provisions of A.M.
No. 05-11-04SC. Pending final determination of the case, the November 23, 2005
temporary restraining order issued by this Court is hereby MAINTAINED.
SO ORDERED.
Puno (C.J., Chairperson), Sandoval-Gutierrez, Azcuna and Leonardo-De
Castro, JJ., concur.
114
114 SUPREME COURT REPORTS ANNOTATED
CRIMINAL LAW
State Land Investment Corporation vs. Commissioner of Internal Revenue
Petition granted, order of Regional Trial Court of Manila, Br. 47 set aside.
Notes.—It is logically congruent that violations of R.A. No. 1379 are placed
under the jurisdiction of the Sandiganbayan, even though the proceeding is civil in
nature, since the forfeiture of the illegally acquired property amounts to a penalty.
(Garcia vs. Sandiganbayan, 460 SCRA 600 [2005])
In civil cases to recover or for restitution, reparation of damages, or
indemnification for consequential and other damages or any other civil actions
under the Civil Code or other existing laws filed with the Sandiganbayan against
Ferdinand E. Marcos, et al., the Sandiganbayan is not to look for proof beyond
reasonable doubt, but to determine, based on the evidence presented, in light of
common human experience, which of the theories proffered by the parties is more
113 worthy of credence. (Yuchengco vs. Sandiganbayan, 479 SCRA 1 [2006])
——o0o——
VOL. 186, JUNE 5, 1990 217
Enrile vs. Salazar
G.R. No. 92163. June 5, 1990.*
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN
PONCE ENRILE, petitioner, vs. JUDGE JAIME SALAZAR (Presiding
Judge of the Regional Trial Court of Quezon City [Br. 103], SENIOR
STATE PROSECUTOR AURELIO TRAMPE, PROSECUTOR FERDINAND
R. ABESAMIS, AND CITY ASSISTANT CITY PROSECUTOR EULOGIO
MANANQUIL, NATIONAL BUREAU OF INVESTIGATION DIRECTOR
ALFREDO LIM, BRIG. GEN. EDGAR DULA TORRES (Superintendent of
the Northern Police District) AND/ OR ANY AND ALL PERSONS WHO
MAY HAVE ACTUAL CUSTODY OVER THE PERSON OF JUAN PONCE
ENRILE, respondents.
G.R. No. 92164. June 5, 1990.*
SPS. REBECCO E. PANLILIO ANDERLINDA E. PANLILIO,
petitioners, vs. PROSECUTORS FERNANDO DE LEON, AURELIO C.
TRAMPE, FERDINAND R. ABESAMIS, AND EULOGIO C. MANANQUIL,
and HON. JAIME N. SALAZAR, JR., in his capacity as Presiding Judge,
Regional Trial Court, Quezon City, Branch 103, respondents.
Rebellion; Complex Crime; Hernandez doctrine prohibits complexing of
rebellion with any other offense.—The rejection of both options shapes and
determines the primary ruling of the Court, which is that Hernandez remains
binding doctrine operating to prohibit the complexing of rebellion with any other
offense committed on the occasion thereof, either as a means necessary to its
commission or as an unintended effect of an activity that constitutes rebellion.
Same; Same; Constitutional Law; Personal evaluation of report and
supporting documents submitted by the prosecutor, sufficient to determine probable
cause.—It is also contended that the respondent Judge issued the warrant for
petitioner’s arrest without first personally determining the existence of probable
| PENALTIES P a g e 46 | 279
cause by examining under oath or affirmation the complainant and his witnesses,
in violation of Art. III, sec. 2, of the Constitution. This Court has already ruled,
however, that it is not the unavoidable duty of the judge to make such a personal
examination, it being sufficient that he follows established procedure
by personally evaluating the report and the supporting documents submitted by
the prosecutor. Petitioner claims that the warrant of arrest issued barely one hour
and twenty minutes after the case was raffled off to the respondent Judge, which
hardly gave the latter sufficient time to personally go over the voluminous records
of the preliminary investigation. Merely because said respondent had what some
might consider only a relatively brief period within which to comply with that duty,
gives no reason to assume that he had not, or could not have, so complied; nor does
that single circumstance suffice to overcome the legal presumption that official
duty has been regularly performed.
Same; Same; Same; Bail; Courts; Respondent Court has jurisdiction to deny
or grant bail to petitioner.—The criminal case before the respondent Judge was the
normal venue for invoking the petitioner’s right to have provisional liberty pending
trial and judgment. The original jurisdiction to grant or deny bail rested with said
respondent. The correct course was for petitioner to invoke that jurisdiction by
filing a petition to be admitted to bail, claiming a right to bail per se or by reason
of the weakness of the evidence against him. Only after that remedy was denied by
the trial court should the review jurisdiction of this Court have been invoked, and
even then, not without first apply-
219
VOL. 186, JUNE 5, 1990 219
Enrile vs. Salazar
ing to the Court of Appeals if appropriate relief was also available there.
Same; Same; Same; Same; Incumbent on the accused, to whom no bail is
recommended, to claim the right to bail hearing to prove the reason or weakness of
evidence against him.—There was and is no reason to assume that the resolution
of any of these questions was beyond the ability or competence of the respondent
Judge—indeed such an assumption would be demeaning and less than fair to our
trial courts; none whatever to hold them to be of such complexity or transcendental
importance as to disqualify every court, except this Court, from deciding them;
none, in short that would justify bypassing established judicial processes designed
to orderly move litigation through the hierarchy of our courts. Parenthetically, this
is the reason behind the vote of four Members of the Court against the grant of bail
to petitioner: the view that the trial court should not thus be precipitately ousted
of its original jurisdiction to grant or deny bail and, if it erred in that matter, denied
an opportunity to correct its error. It makes no difference that the respondent
Judge here issued a warrant of arrest fixing no bail. Immemorial practice sanctions
simply following the prosecutor’s recommendation regarding bail, though it may be
perceived as the better course for the judge motu propio to set a bail hearing where
a capital offense is charged. It is, in any event, incumbent on the accused as to
whom no bail has been recommended or fixed to claim the right to a bail hearing
and thereby put to proof the strength or weakness of the evidence against him.
CRIMINAL LAW | PENALTIES
Same; Same; Same; Same; Same; Court has no power to change, but only to
interpret the law as it stands at any given time.—It is enough to give anyone
pause—and the Court is no exception—that not even the crowded streets of our
capital City seem safe from such unsettling violence that is disruptive of the public
peace and stymies every effort at national economic recovery. There is an apparent
need to restructure the law on rebellion, either to raise the penalty therefor or to
clearly define and delimit the other offenses to be considered as absorbed thereby,
so that it cannot be conveniently utilized as the umbrella for every sort of illegal
activity undertaken in its name. The Court has no power to effect such change, for
it can only interpret the law as it stands at any given time, and what is needed lies
beyond interpretation. Hopefully, Congress will perceive the need for promptly the
initiative in this matter, which is properly within its province.
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220 SUPREME COURT REPORTS ANNOTATED
Enrile vs. Salazar
FERNAN, C.J., Dissenting and Concurring:
Rebellion; Complex Crime; Hernandez doctrine should not be interpreted as
an all embracing authority; Reasons.—To my mind, the Hernandez doctrine should
not be interpreted as an all-embracing authority for the rule that all common
crimes committed on the occasion, or in furtherance of, or in connection with,
rebellion are absorbed by the latter. To that extent, I cannot go along with the view
of the majority in the instant case that “Hernandez remains binding doctrine
operating to prohibit the complexing of rebellion with any other offense committed
on the occasion thereof, either as a means necessary to its commission or as an
unintended effect of an activity that constitutes rebellion.”
MELENCIO-HERRERA, J., Separate Opinion:
Rebellion; Complex Crime; Habeas Corpus; Statutes; The rules on habeas
corpus are to be liberally construed.—While litigants, should, as a rule, ascend the
steps of the judicial ladder, nothing should stop this Court from taking cognizance
of petitions brought before it raising urgent constitutional issues, any procedural
flaw notwithstanding. The rules on habeas corpus are to be liberally construed
(Ganaway v. Quilen, 42 Phil. 805), the writ of habeas corpus being the fundamental
instrument for safeguarding individual freedom against arbitrary and lawless state
action. The scope and flexibility of the writ—its capacity to reach all manner of
illegal detention—its ability to cut through barriers of form and procedural mazes—
have always been emphasized and jealously guarded by courts and lawmakers
(Gumabon v. Director of Bureau of Prisons, 37 SCRA 420) [italics ours].
FELICIANO, J., Concurring Opinion:
Rebellion; Complex Crime; Statutes; Non-retroactivity rule applies to statutes
principally; Expost facto law.—The non-retroactivity rule applies to statutes
P a g e 47 | 279
principally. But, statutes do not exist in the abstract but rather bear upon the lives
of people with the specific form given them by judicial decisions interpreting their
norms. Judicial decisions construing statutory norms give specific shape and
content to such norms. In time, the statutory norms become encrusted with the
glosses placed upon them by the courts and the glosses become integral with the
norms (Cf. Caltex v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal theory,
judicial interpretation of a statute becomes part of the law as of the date that the
law was originally
221
VOL. 186, JUNE 5, 1990 221
Enrile vs. Salazar
enacted, I believe this theory is not to be applied rigorously where a new
judicial doctrine is announced, in particular one overruling a previous existing
doctrine of long standing (here, 36 years) and most specially not where the statute
construed is criminal in nature and the new doctrine is more onerous for the
accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [19741; People
v. Licera, 65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA 420
[1971]). Moreover, the non-retroactivity rule whether in respect of legislative acts
or judicial decisions has constitutional implications. The prevailing rule in the
United States is that a judicial decision that retroactively renders an act criminal
or enhances the severity of the penalty prescribed for an offense, is vulnerable to
constitutional challenge based upon the rule against ex post facto laws and the due
process clause (Bouie v. City of Columbia, 378 US 347, 12 L. Ed. 2d 894 [1964];
Marks v. U.S., 43 US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico
Department of Corrections, 866 F. 2d 339 [1989]).
GUTIERREZ, JR., J., Concurring Opinion:
Rebellion; Complex Crime; Rebellion consists of many acts; Case at bar.—The
crime of rebellion consists of many acts. The dropping of one bomb cannot be
isolated as a separate crime of rebellion. Neither should the dropping of one
hundred bombs or the firing of thousands of machine gun bullets be broken up into
a hundred or thousands of separate offenses, if each bomb or each bullet happens
to result in the destruction of life and property. The same act cannot be punishable
by separate penalties depending on what strikes the fancy of prosecutors—
punishment for the killing of soldiers or retribution for the deaths of civilians. The
prosecution also loses sight of the regrettable fact that in total war and in rebellion
the killing of civilians, the laying waste of civilian economies, the massacre of
innocent people, the blowing up of passenger airplanes, and other acts of terrorism
are all used by those engaged in rebellion. We cannot and should not try to
ascertain the intent of rebels for each single act unless the act is plainly not
connected to the rebellion. We cannot use Article 48 of the Revised Penal Code in
lieu of still-to-be-enacted legislation. The killing of civilians during a rebel attack
on military facilities furthers the rebellion and is part of the rebellion.
PADILLA, J., Separate Opinion:
CRIMINAL LAW | PENALTIES
Rebellion; Complex yCrime; Crime of Rebellion complexed with murder, and
multiple frustrated murder does not exist.—Furthermore, the Supreme Court, in
the Hernandez case, was “ground- breaking” on
222
222 SUPREME COURT REPORTS ANNOTATED
Enrile vs. Salazar
the issue of whether rebellion can be complexed with murder, arson, robbery,
etc. In the present cases, on the other hand, the prosecution and the lower court,
not only had the Hernandez doctrine (as case law), but Executive Order No. 187 of
President Corazon C. Aquino dated 5 June 1987 (as statutory law) to bind them to
the legal proposition that the crime of rebellion complexed with murder, and
multiple frustrated murder does not exist.
Same; Same; Same; Case at bar; The reformation is clearly a nullity and
plainly void ab initio.—And yet, notwithstanding
these unmistakable and controlling beacon lights—absent when this Court laid
down the Hernandez doctrine—the prosecution has insisted in filing, and the lower
court has persisted in hearing, an information charging the petitioners with
rebellion complexed with murder and multiple frustrated murder. That
information is clearly a nullity and plainly void ab initio. Its head should not be
allowed to surface. As a nullity in substantive law, it charges nothing; it has given
rise to nothing. The warrants of arrest issued pursuant thereto are as null and void
as the information on which they are anchored. And, since the entire question of
the information’s validity is before the Court in these habeas corpus cases, I
venture to say that the information is fatally defective, even under procedural law,
because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court).
BIDIN, J., Concurring and Dissenting:
Rebellion; Complex Crime; Bail; Habeas Corpus is the proper remedy to
petitioner as an accused; Case at bar.—I submit that the proceedings need not be
remanded to the respondent judge for the purpose of fixing bail since we have
construed the indictment herein as charging simple rebellion, an offense which is
bailable. Consequently, habeas corpus is the proper remedy available to petitioner
as an accused who had been charged with simple rebellion, a bailable offense but
who had been denied his right to bail by the respondent judge in violation of the
petitioner’s constitutional right to bail. In view thereof, the responsibility of fixing
the amount of bail and approval thereof when filed, devolves upon us, if complete
relief is to be accorded to petitioner in the instant proceedings.
SARMIENTO, J., Concurring in part and dissenting in part:
Rebellion; Complex Crime; Habeas Corpus; Bail; No useful purpose to have
the trial court hear the incident again when the Supreme Court has been satisfied
that petitioner is entitled to temporary
223
VOL. 186, JUNE 5, 1990 223
P a g e 48 | 279
 Enrile vs. Salazar
freedom.—I dissent, however, insofar as the majority orders the remand of
the matter of bail to the lower court. I take it that when we, in our Resolution of
March 6, 1990, granted the petitioner “provisional liberty” upon the filing of a bond
of P100,000.00, we granted him bail. The fact that we gave him “provisional liberty”
is in my view, of no moment, because bail means provisional liberty. It will serve
no useful purpose to have the trial court hear the incident again when we ourselves
have been satisfied that the petitioner is entitled to temporary freedom.
PETITION for Habeas Corpus.
The facts are stated in the opinion of the Court.
NARVASA, J.:
Thirty-four years after it wrote history into our criminal jurisprudence, People vs.
Hernandez1 once more takes center stage as the focus of a confrontation at law that
would reexamine, if not the validity of its doctrine, the limits of its applicability. To
be sure, the intervening period saw a number of similar cases 2 that took issue with
the ruling—all with a marked lack of success—but none, it would seem, where
season and circumstance had more effectively conspired to attract wide public
attention and excite impassioned debate, even among laymen; none, certainly,
which has seen quite the kind and range of arguments that are now brought to bear
on the same question.
The facts are not in dispute. In the afternoon of February 27, 1990, Senate
Minority Floor Leader Juan Ponce Enrile was arrested by law enforcement officers
led by Director Alfredo Lim of the National Bureau of Investigation on the strength
of a warrant issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon
City Branch 103, in Criminal Case No. 90-10941. The warrant had issued on an
information signed and earlier that day filed by a panel of prosecutors composed of
_______________
99 Phil. 515 (1956).
1 motion of the petitioners, resolved to treat as a petition
People vs. Lava, 28 SCRA 72 (1956); People vs. Geronimo, 100 Phil.
2 225
90 (1956); People vs. Romagosa, 103 Phil. 20 (1958); and People vs. Rodriguez, 107
Phil. 659 (1960).
224
224 SUPREME COURT REPORTS ANNOTATED
Enrile vs. Salazar
Senior State Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R.
Abesamis and Assistant City Prosecutor Eulogio Mananquil, Jr., charging Senator
Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the
crime of rebellion with murder and multiple frustrated murder allegedly committed
during the period of the failed coup attempt from November 29 to December 10,
CRIMINAL LAW | PENALTIES
1990. Senator Enrile was taken to and held overnight at the NBI headquarters on
Taft Avenue, Manila, without bail, none having been recommended in the
information and none fixed in the arrest warrant. The following morning, February
28, 1990, he was brought to Camp Tomas Karingal in Quezon City where he was
given over to the custody of the Superintendent of the Northern Police District,
Brig. Gen. Edgardo Dula Torres.3
On the same date of February 28, 1990, Senator Enrile, through counsel, filed
the petition for habeas corpus herein (which was followed by a supplemental
petition filed on March 2, 1990), alleging that he was deprived of his constitutional
rights in being, or having been:
1. (a)held to answer for criminal offense which does not exist in the statute
books;
2. (b)charged with a criminal offense in an information for which no
complaint was initially filed or preliminary investigation was conducted,
hence was denied due process;
3. (c)denied his right to bail; and
4. (d)arrested and detained on the strength of a warrant issued without the
judge who issued it first having personally determined the existence of
probable cause.4
The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for
hearing on March 6, 1990.5 On March 5, 1990, the Solicitor General filed a
consolidated return6 for the respondents in this case and in G.R. No. 92164,7 which
had been
_______________
3 Rollo, G.R. No. 92163, pp. 32-34.
4 Rollo, G.R. No. 92163, pp. 34 et seq.
5 Rollo, G.R. No. 92163, p. 26.
6 Rollo, G.R. No. 92163, pp. 305-359.
7 Originally a petition for certiorari and prohibition which the Court, upon
VOL. 186, JUNE 5, 1990 225
Enrile vs. Salazar
contemporaneously but separately filed by two of Senator Enrile’s co-accused, the
spouses Rebecco and Erlinda Panlilio, and raised similar questions. Said return
urged that the petitioners’ case does not fall within the Hernandez ruling because—
and this is putting it very simply—the information in Hernandez charged murders
and other common crimes committed as a necessary means for the commission of
rebellion, whereas the information against Sen. Enrile et al. charged murder and
frustrated murder committed on the occasion, but not in furtherance, of rebellion.
Stated otherwise, the Solicitor General would distinguish between the complex
crime (“delito complejo”) arising from an offense being a necessary means for
P a g e 49 | 279
committing another, which is referred to in the second clause of Article 48, Revised
Penal Code, and is the subject of the Hernandez ruling, and the compound crime
(“delito compuesto”) arising from a single act constituting two or more grave or less
grave offenses referred to in the first clause of the same paragraph, with
which Hernandez was not concerned and to which, therefore, it should not apply.
The parties were heard in oral argument, as scheduled, on March 6, 1990, after
which the Court issued its Resolution of the same date8 granting Senator Enrile
and the Panlilio spouses provisional liberty conditioned upon their filing, within 24
hours from notice, cash or surety bonds of P100,000.00 (for Senator Enrile) and
P200,000.00 (for the Panlilios), respectively. The Resolution stated that it was
issued without prejudice to a more extended resolution on the matter of the
provisional liberty of the petitioners and stressed that it was not passing upon the
legal issues raised in both cases. Four Members of the Court 9 voted against
granting bail to Senator Enrile, and two10 against granting bail to the Panlilios.
The Court now addresses those issues insofar as they are raised and litigated
in Senator Enrile’s petition, G.R. No. 92163.
The parties’ oral and written pleas presented the Court with the following
options:
_______________
for habeas corpus; Rollo, G.R. No. 92164, pp. 128-129.
8 Rollo, G.R. No. 92163, pp. 407-411.
9 Fernan, C.J., and Narvasa, Cortés and Griño-Aquino, JJ.
10 Fernan, C.J. and Narvasa, J.
226
226 SUPREME COURT REPORTS ANNOTATED
Enrile vs. Salazar
1. (a)abandon Hernandez and adopt the minority view expressed in the main
dissent of Justice Montemayor in said case that rebellion cannot absorb
more serious crimes, and that under Article 48 of the Revised Penal Code
rebellion may properly be complexed with common offenses, so-called;
this option was suggested by the Solicitor General in oral argument
although it is not offered in Ms written pleadings;
2. (b)hold Hernandez applicable only to offenses committed in furtherance,
or as a necessary means for the commission, of rebellion, but not to acts
committed in the course of a rebellion which also constitute “common”
crimes of grave or less grave character;
3. (c)maintain Hernandez as applying to make rebellion absorb all other
offenses committed in its course, whether or not necessary to its
commission or in furtherance thereof.
On the first option, eleven (11) Members of the Court voted against
abandoning Hernandez. Two (2) Members felt that the doctrine should be re-
exainined.10-a In the view of the majority, the ruling remains good law, its
CRIMINAL LAW | PENALTIES
substantive and logical bases have withstood all subsequent challenges and no new
ones are presented here persuasive enough to warrant a complete reversal. This
view is reinforced by the fact that not too long ago, the incumbent President,
exercising her powers under the 1986 Freedom Constitution, saw fit to repeal,
among others, Presidential Decree No. 942 of the former regime which precisely
sought to nullify or neutralize Hernandez by enacting a new provision (Art. 142-A)
into the Revised Penal Code to the effect that “(w)hen by reason, or on the occasion,
of any of the crimes penalized in this Chapter (Chapter I of Title 3, which includes
rebellion), acts which constitute offenses upon which graver penalties are imposed
by law are committed, the penalty for the most serious offense in its maximum
period shall be imposed upon the offender.”11 In thus acting, the President in effect
by legislative fiat reinstated Hernandez as binding doctrine with the effect of law.
The Court can do no less than accord it the same recognition, absent any
sufficiently powerful reason against so doing.
On the second option, the Court unanimously voted to reject
________________
Two Members are on leave.
10-a
11Executive Order No. 187 issued June 5, 1987.
227
VOL. 186, JUNE 5, 1990 227
Enrile vs. Salazar
the theory that Hernandez is, or should be, limited in its application to offenses
committed as a necessary means for the commission of rebellion and that the ruling
should not be interpreted as prohibiting the complexing of rebellion with other
common crimes committed on the occasion, but not in furtherance, thereof While
four Members of the Court felt that the proponents’ arguments were not entirely
devoid of merit, the consensus was that they were not sufficient to overcome what
appears to be the real thrust of Hernandez to rule out the complexing of rebellion
with any other offense committed in its course under either of the aforecited clauses
of Article 48, as is made clear by the following excerpt from the majority opinion in
that case:
“There is one other reason—and a fundamental one at that—why Article 48 of our
Penal Code cannot be applied in the case at bar. If murder were not complexed with
rebellion, and the two crimes were punished separately (assuming that this could
be done), the following penalties would be imposable upon the movant, namely: (1)
for the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the
corresponding period, depending upon the modifying circumstances present, but
never exceeding 12 years of prision mayor; and (2) for the crime of
murder, reclusion temporal in its maximum period to death, depending upon the
modifying circumstances present. In other words, in the absence of aggravating
circumstances, the extreme penalty could not be imposed upon him. However, under
Article 48 said penalty would have to be meted out to him, even in the absence of a
single aggravating circumstance. Thus, said provision, if construed in conformity
with the theory of the prosecution, would be unfavorable to the movant.
P a g e 50 | 279
 “Upon the other hand, said Article 48 was enacted for the purpose
of favoring the culprit, not of sentencing him to a penalty more severe than that
which would be proper if the several acts performed toy Mm were punished
separately. In the words of Rodriguez Navarro:
‘La unificacion de penas en los casos de eoncmrso de delitos a que hace referenda
este articulo (75 del Codigo de 1932), esta basado franeamente en el principio pro
reo.’ (II Doctrina Penal del Tribunal Supremo de Espana, p. 2168.)
“We are aware of the fact that this observation refers to Article 71 (later 75) of
the Spanish Penal Code (the counterpart of our Article 48), as amended in 1908
and then in 1932, reading:
228
228 SUPREME COURT REPORTS ANNOTATED
Enrile vs. Salazar
‘Las disposiciones del articulo anterior no son aplicables en el caso de que un solo
hecho constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario
para cometer el otro.
‘En estos casos solo se impondra la pena correspondiente al delito mas grave en
su grado maximo, hasta el limite que represente la suma de las que pudieran
imponerse, penando separadamente los delitos.
‘Cuando la pena asi computada exceda de este limite, se sancionaran los delitos
por séparado.’ (Rodriguez Navarro, Doctrina Penal del Tribunal Supremo, Vol. II,
p. 2163)
and that our Article 48 does not contain the qualification inserted in said
amendment, restricting the imposition of the penalty for the graver offense in its
maximum period to the case when it does not exceed the sum total of the penalties
imposable if the acts charged were dealt with separately. The absence of said
limitation in our Penal Code does not, to our mind, affect substantially the spirit of
said Article 48. Indeed, if one act constitutes two or more offenses, there can be no
reason to inflict a punishment graver than that prescribed for each one of said
offenses put together. In directing that the penalty for the graver offense be, in such
case, imposed in its maximum period, Article 48 could have had no other purpose
than to prescribe a penalty lower than the aggregate of the penalties for each
offense, if imposed separately. The reason for this benevolent spirit of Article 48 is
readily discernible. When two or more crimes are the result of a single act, the
offender is deemed less perverse than when he commits said crimes thru separate
and distinct acts. Instead of sentencing him for each crime independently from the
other, he must suffer the maximum of the penalty for the more serious one, on the
assumption that it is less grave than the sum total of the separate penalties for
each offense.”12
The rejection of both options shapes and determines the primary ruling of the
Court, which is that Hernandez remains binding doctrine operating to prohibit the
complexing of rebellion with any other offense committed on the occasion thereof,
either as a means necessary to its commission or as an unintended effect of an
activity that constitutes rebellion.
This, however, does not write finis to the case. Petitioner’s guilt or innocence is
not here inquired into, much less adjudged. That is for the trial court to do at the
CRIMINAL LAW | PENALTIES
proper time. The Court’s ruling merely provides a take-off point for the disposition
of
________________
12People vs. Hernandez, supra at 541-543.
229
VOL. 186, JUNE 5, 1990 229
Enrile vs. Salazar
other questions relevant to the petitioner’s complaints about the denial of his rights
and to the propriety of the recourse he has taken.
The Court rules further (by a vote of 11 to 3) that the information filed against
the petitioner does in fact charge an offense. Disregarding the objectionable
phrasing that would complex rebellion with murder and multiple frustrated
murder, that indictment is to be read as charging simple rebellion. Thus,
in Hernandez, the Court said:
“In conclusion, we hold that, under the allegations of the amended
information against defendant-appellant Amado V. Hernandez, the murders,
arsons and robberies described therein are mere ingredients of the crime of
rebellion allegedly committed by said defendants, as means “necessary” (4) for the
perpetration of said offense of rebellion; that the crime charged in the
aforementioned amended information is, therefore, simple rebellion, not the
complex crime of rebellion with multiple murder, arsons and robberies; that the
maximum penalty imposable under such charge cannot exceed twelve (12) years
of prision mayor and a fine of P20,000; and that, in conformity with the policy of
this court in dealing with accused persons amenable to a similar punishment, said
defendant may be allowed bail.”13
The plaint of petitioner’s counsel that he is charged with a crime that does not exist
in the statute books, while technically correct so far as the Court has ruled that
rebellion may not be complexed with other offenses committed on the occasion
thereof, must therefore be dismissed as a mere flight of rhetoric. Read in the context
of Hernandez, the information does indeed charge the petitioner with a crime
defined and punished by the Revised Penal Code: simple rebellion.
Was the petitioner charged without a complaint having been initially filed
and/or preliminary investigation conducted? The record shows otherwise, that a
complaint against petitioner for simple rebellion was filed by the Director of the
National Bureau of Investigation, and that on the strength of said complaint a
preliminary investigation was conducted by the respondent prosecutors,
culminating in the filing of the ques-
_______________
13Id., at 551.
230
230 SUPREME COURT REPORTS ANNOTATED
P a g e 51 | 279
 Enrile vs. Salazar
tioned information.14 There is nothing inherently irregular or contrary to law in
filing against a respondent an indictment for an offense different from what is
charged in the initiatory complaint, if warranted by the evidence developed during
the preliminary investigation.
It is also contended that the respondent Judge issued the warrant for
petitioner’s arrest without first personally determining the existence of probable
cause by examining under oath or affirmation the complainant and his witnesses,
in violation of Art. III, sec. 2, of the Constitution.15 This Court has already ruled,
however, that it is not the unavoidable duty of the judge to make such a personal
examination, it being sufficient that he follows established procedure
by personally evaluating the report and the supporting documents submitted by
the prosecutor.16 Petitioner claims that the warrant of arrest issued barely one
hour and twenty minutes after the case was raffled off to the respondent Judge,
which hardly gave the latter sufficient time to personally go over the voluminous
records of the preliminary investigation.17 Merely because said respondent had
what some might consider only a relatively brief period within which to comply
with that duty, gives no reason to assume that he had not, or could not have, so
complied; nor does that single circumstance suffice to overcome the legal
presumption that official duty has been regularly performed.
Petitioner finally claims that he was denied the right to bail. In the light of the
Court’s reaffirmation of Hernandez as applicable to petitioner’s case, and of the
logical an.d necessary corollary that the information against him should be
considered as charging only the crime of simple rebellion, which is bailable before
conviction, that must now be accepted as a correct proposition. But the question
remains: Given the facts from which this case arose, was a petition for habeas
corpus in this Court the appropriate vehicle for asserting a right to bail or
vindicating its denial?
_______________
14 Rollo, G.R. No. 92163, pp, 78-79 and 73-76.
15 Supra, footnote 4.
16 Soliven vs. Makasiar, 167 SCRA 394.
17 Rollo, G.R. No. 92163, pp. 46-47.
231
VOL. 186, JUNE 5, 1990 231
Enrile vs. Salazar
The criminal case before the respondent Judge was the normal venue for invoking
the petitioner’s right to have provisional liberty pending trial and judgment. The
original jurisdiction to grant or deny bail rested with said respondent. The correct
course was for petitioner to invoke that jurisdiction by filing a petition to be
admitted to bail, claiming a right to bail per se by reason of the weakness of the
evidence against him. Only after that remedy was denied by the trial court should
the review jurisdiction of this Court have been invoked, and even then, not without
first applying to the Court of Appeals if appropriate relief was also available there.
CRIMINAL LAW | PENALTIES
Even acceptance of petitioner’s premise that going by the Hernandez ruling, the
information charges a non-existent crime or, contrarily, theorizing on the same
basis that it charges more than one offense, would not excuse or justify his improper
choice of remedies. Under either hypothesis, the obvious recourse would have been
a motion to quash brought in the criminal action before the respondent Judge.18
There thus seems to be no question that all the grounds upon which petitioner
has founded the present petition, whether these went into the substance of what is
charged in the information or imputed error or omission on the part of the
prosecuting panel or of the respondent Judge in dealing with the charges against
him, were originally justiciable in the criminal case before said Judge and should
have been brought up there instead of directly to this Court.
There was and is no reason to assume that the resolution of any of these
questions was beyond the ability or competence of the respondent Judge—indeed
such an assumption would be demeaning and less than fair to our trial courts; none
whatever to hold them to be of such complexity or transcendental importance as to
disqualify every court, except this Court, irom deciding them; none, in short that
would justify by-passing established judicial processes designed to orderly move
litigation through the hierarchy of our courts. Parenthetically, this is the reason
behind the vote of four Members of the Court against the grant of bail to petitioner:
the view that the trial
_______________
18Sec. 2, Rule 117, Rules of Court.
232
232 SUPREME COURT REPORTS ANNOTATED
Enrile vs. Salazar
court should not thus be precipitately ousted of its original jurisdiction to grant or
deny bail, and if it erred in that matter, denied an opportunity to correct its error.
It makes no differ* ence that the respondent Judge here issued a warrant of arrest
fixing no bail. Immemorial practice sanctions simply following the prosecutor’s
recommendation regarding bail, though it may be perceived as the better course for
the judge motu proprio to set a bail hearing where a capital offense is charged.19 It
is, in any event, incumbent on the accused as to whom no bail has been
recommended or fixed to claim the right to a bail hearing and thereby put to proof
the strength or weakness of the evidence against him.
It is apropos to point out that the present petition has triggered a rush to this
Court of other parties in a similar situation, all apparently taking their cue from
it, distrustful or contemptuous of the efficacy of seeking recourse in the regular
manner just outlined. The proliferation of such pleas has only contributed to the
delay that the petitioner may have hoped to avoid by coming directly to this Court.
Not only because popular interest seems focused on the outcome of the present
petition, but also because to wash the Court’s hand off it on jurisdictional grounds
would only compound the delay that it has already gone through, the Court now
decides the same on the merits. But in so doing, the Court cannot express too
strongly the view that said petition interdicted the ordered and orderly progression
P a g e 52 | 279
of proceedings that should have started with the trial court and reached this Court
only if the relief applied for was denied by the former and, in a proper case, by the
Court of Appeals on review.
Let it be made very clear that hereafter the Court will no longer countenance,
but will give short shrift to, pleas like the present, that clearly short-circuit the
judicial process and burden it with the resolution of issues properly within the
original competence of the lower courts.
What has thus far been stated is equally applicable to and decisive of the
petition of the Panlilio spouses (G.R. No. 92164) which is virtually identical to that
of petitioner Enrile in factual
_______________
19Ocampo vs. Bernabe, 77 Phil. 55.
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Enrile vs. Salazar
milieu and is therefore determinable on the same principles already set forth. Said
spouses have uncontestedly pleaded20 that warrants of arrest issued against them
as co-accused of petitioner Enrile in Criminal Case No. 90-10941, that when they
appeared before NBI Director Alfredo Lim in the afternoon of March 1, 1990, they
were taken into custody and detained without bail on the strength of said warrants
in violation—they claim—of their constitutional rights.
It may be that in the light of contemporary events, the act of rebellion has lost
that quitessentially quixotic quality that justifies the relative leniency with which
it is regarded and punished by law, that present-day rebels are less impelled by
love of country than by lust for power and have become no better than mere
terrorists to whom nothing, not even the sanctity of human life, is allowed to stand
in the way of their ambitions. Nothing so underscores this aberration as the rash
of seemingly senseless killings, bombings, kidnappings and assorted mayhem so
much in the news these days, as often perpetrated against innocent civilians as
against the military, but by and large attributable to, or even claimed by so-called
rebels to be part of, an ongoing rebellion.
It is enough to give anyone pause—and the Court is no exception—that not even
the crowded streets of our capital City seem safe from such unsettling violence that
is disruptive of the public peace and stymies every effort at national economic
recovery. There is an apparent need to restructure the law on rebellion, either to
raise the penalty therefor or to clearly define and delimit the other offenses to be
considered as absorbed thereby, so that it cannot be conveniently utilized as the
umbrella for every sort of illegal activity undertaken in its name. The Court has no
power to effect such change, for it can only interpret the law as it stands at any
given time, and what is needed lies beyond interpretation. Hopefully, Congress will
perceive the need for promptly seizing the initiative in this matter, which is
properly within its province.
CRIMINAL LAW | PENALTIES
WHEREFORE, the Court reiterates that based on the doctrine enunciated
in People vs. Hernandez, the questioned information filed against petitioners Juan
Ponce Enrile and the
_______________
20Rollo, G.R. No. 92164, pp. 124-125.
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234 SUPREME COURT REPORTS ANNOTATED
Enrile vs. Salazar
spouses Rebecco and Erlinda Panlilio must be read as charging simple rebellion
only, hence said petitioners are entitled to bail, before final conviction, as a matter
of right. The Court’s earlier grant of bail to petitioners being merely provisional in
character, the proceedings in both cases are ordered REMANDED to the
respondent Judge to fix the amount of bail to be posted by the petitioners. Once
bail is fixed by said respondent for any of the petitioners, the corresponding bail
bond filed with this Court shall become functus oficio. No pronouncement as to
costs.
SO ORDERED,
Cruz, Gancayco and Regalado, JJ., concur.
Fernan, C.J., See separate dissenting and concurring opinion.
Melencio-Herrera and Feliciano, JJ., See separate opinion.
Gutierrez, Jr., J., See concurring opinion.
Paras, J., I concur with the separate opinion of Justice Padilla.
Padilla, J., See dissent.
Bidin, J., See concurring and dissenting opinion.
Sarmiento, J., See concurring and dissenting in part.
Cortés and Griño-Aquino, JJ., On leave.
Medialdea, J., Concurring in G.R. No. 92164; No part in G.R. No. 92163.
FERNAN, C.J., Dissenting and Concurring:
I am constrained to write this separate opinion on what seems to be a rigid
adherence to the 1956 ruling of the Court. The numerous challenges to the doctrine
enunciated in the case of People vs. Hernandez, 99 Phil. 515 (1956) should at once
demonstrate the need to redefine the applicability of said doctrine so as to make it
conformable with accepted and well-settled principles of criminal law and
jurisprudence.
To my mind, the Hernandez doctrine should not be interpreted as an all-
embracing authority for the rule that all common crimes committed on the occasion,
or in furtherance of, or in connection with, rebellion are absorbed by the latter. To
that extent, I cannot go along with the view of the majority in the
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VOL. 186 JUNE 5, 1990 235
Enrile vs. Salazar
P a g e 53 | 279
instant case that “Hernandez remains binding doctrine operating to prohibit the
complexing of rebellion with any other offense committed on the occasion thereof,
either as a means necessary to its commission or as an unintended effect of an
activity that constitutes rebellion” (p. 9, Decision).
The Hernandez doctrine has served the purpose for which it was applied by the
Court in 1956 during the communist-inspired rebellion of the Huks. The changes
in our society in the span of 34 years since then have far-reaching effects on the all-
embracing applicability of the doctrine considering the emergence of alternative
modes of seizing the powers of the duly-constituted Government not contemplated
in Articles 134 and 135 of the Revised Penal Code and their consequent effects on
the lives of our people. The doctrine was good law then, but I believe that there is
a certain aspect of the Hernandez doctrine that needs clarification.
With all due respect to the views of my brethren in the Court, I believe that the
Court, in the instant case, should have further considered that distinction between
acts or offenses which are indispensable in the commission of rebellion, on the one
hand, and those acts or offenses that are merely necessary but not indispensable in
the commission of rebellion, on the other. The majority of the Court is correct in
adopting, albeit impliedly, the view in Hernandez case that when an offense
perpetrated as a necessary means of committing another, which is an element of
the latter, the resulting interlocking crimes should be considered as only one simple
offense and must be deemed outside the operation of the complex crime provision
(Article 48) of the Revised Penal Code. As in the case of Hernandez, the Court,
however, failed in the instant case to distinguish what is indispensable from what
is merely necessary in the commission of an offense, resulting thus in the rule that
common crimes like murder, arson, robbery, etc. committed in the course or on the
occasion of rebellion are absorbed or included in the latter as elements thereof.
The relevance of the distinction is significant, more particularly, if applied to
contemporaneous events happening in our country today. Theoretically, a crime
which is indispensable in the commission of another must necessarily be an
element of the latter; but a crime that is merely necessary but not indis-
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236 SUPREME COURT REPORTS ANNOTATED
Enrile vs. Salazar
pensable in the commission of another is not an element of the latter, and if and
when actually committed, brings the interlocking crime within the operation of the
complex crime provision (Art. 48) of the Revised Penal Code. With that distinction,
common crimes committed against Government forces and property in the course
of rebellion are properly considered indispensable overt acts of rebellion and are
logically absorbed in it as virtual ingredients or elements thereof, but common
crimes committed against the civilian population in the course or on the occasion
of rebellion and in furtherance thereof, may be necessary but not indispensable in
committing the latter, and may, therefore, not be considered as elements of the said
crime of rebellion. To illustrate, the deaths occurring during armed confrontation
or clashes between government forces and the rebels are absorbed in the rebellion,
and would be those resulting from the bombing of military camps and installations,
as these acts are indispensable in carrying out the rebellion. But deliberately
CRIMINAL LAW | PENALTIES
shooting down an unarmed innocent civilian to instill fear or create chaos among
the people, although done in the furtherance of the rebellion, should not be
absorbed in the crime of rebellion as the felonious act is merely necessary, but not
indispensable, In the latter case, Article 48 of the Revised Penal Code should apply.
The occurrence of a coup d’etat in our country as a mode of seizing the powers
of the duly-constituted government by staging surprise attacks or occupying
centers of powers, of which this Court should take judicial notice, has introduced a
new dimension to the interpretation of the provisions on rebellion and insurrection
in the Revised Penal Code. Generally, as a mode of seizing the powers of the duly-
constituted government, it falls within the contemplation of rebellion under the
Revised Penal Code, but, strictly construed, a coup d’etat per se is a class by itself.
The manner of its execution and the extent and magnitude of its effects on the lives
of the people distinguish a coup d’etat from the traditional definition and modes of
commission attached by the Revised Penal Code to the crime of rebellion as applied
by the Court to the communist-inspired rebellion of the 1950’s. A coup d’etat may
be executed successfully without its perpetrators resorting to the commission of
other serious crimes such as murder, arson, kidnapping, robbery, etc. because of
the
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VOL. 186, JUNE 5, 1990 237
Enrile vs. Salazar
element of surprise and the precise timing of its execution. In extreme cases where
murder, arson, robbery, and other common crimes are committed on the occasion
of a coup d’etat, the distinction referred to above on what is necessary and what is
indispensable in the commission of the coup d’etat should be painstakingly
considered as the Court should have done in the case of herein petitioners.
I concur in the result insofar as the other issues are resolved by the Court but
I take exception to the vote of the majority on the broad application of the
Hernandez doctrine.
MELENCIO-HERRERA, J., Separate Opinion:
I join my colleagues in holding that the Hernandez doctrine, which has been with
us for the past three decades, remains good law and, thus, should remain
undisturbed, despite periodic challenges to it that, ironically, have only served to
strengthen its pronouncements.
I take exception to the view, however, that habeas corpus was not the proper
remedy.
Had the Information filed below charged merely the simple crime of Rebellion,
that proposition could have been plausible. But that Information charged Rebellion
complexed with Murder and Multiple Frustrated Murder, a crime which does not
exist in our statute books. The charge was obviously intended to make the penalty
for the most serious offense in its maximum period imposable upon the offender
pursuant to Article 48 of the Revised Penal Code. Thus, no bail was recommended
in the Information nor was any prescribed in the Warrant of Arrest issued by the
Trial Court.
P a g e 54 | 279
 Under the attendant circumstances, therefore, to have filed a Motion to Quash
before the lower Court would not have brought about the speedy relief from
unlawful restraint that petitioner was seeking. During the pendency of said Motion
before the lower Court, petitioner could have continued to languish in detention.
Besides, the Writ of Habeas Corpus may still issue even if another remedy, which
is less effective, may be availed of (Chavez vs. Court of Appeals, 24 SCRA 663).
It is true that habeas corpus would ordinarily not lie when a person is under
custody by virtue of a process issued by a Court.
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238 SUPREME COURT REPORTS ANNOTATED
Enrile vs. Salazar
The Court, however, must have jurisdiction to issue the process. In this case, the
Court below must be deemed to have been ousted of jurisdiction when it illegally
curtailed petitioner’s liberty. Habeas corpus is thus available.
The writ of habeas corpus is available to relieve persons from unlawful restraint.
But where the detention or confinement is the result of a process issued by the
court or judge or by virtue of a judgment or sentence, the writ ordinarily cannot be
availed of. It may still be invoked though if the process, judgment or sentence
proceeded from a court or tribunal the jurisdiction of which may be assailed. Even
if it had authority to act at the outset, it is now the prevailing doctrine that a
deprivation of constitutional right, if shown to exist, would oust it of jurisdiction. In
such a case, habeas corpus could be relied upon to regain one’s liberty (Celeste vs.
People, 31 SCRA 391) [Italics ours].
The Petition for habeas corpus was precisely premised on the violation of
petitioner’s constitutional right to bail inasmuch as rebellion, under the present
state of the law, is a bailable offense and the crime for which petitioner stands
accused of and for which he was denied bail is non-existent in law. While litigants
should, as a rule, ascend the steps of the judicial ladder, nothing should stop this
Court from taking cognizance of petitions brought before it raising urgent
constitutional issues, any procedural flaw notwithstanding.
The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42
Phil. 805), the writ of habeas corpus being the fundamental instrument for
safeguarding individual freedom against arbitrary and lawless state action. The
scope and flexibility of the writ—its capacity to reach all manner of illegal
detention—its ability to cut through barriers of form and procedural mazes—have
always been emphasized and jealously guarded by courts and lawmakers
(Gumabon v. Director of Bureau of Prisons, 37 SCRA 420) [italics ours].
The proliferation of cases in this Court, which followed in the wake of this Petition,
was brought about by the insistence of the prosecution to charge the crime of
Rebellion complexed with other common offenses notwithstanding the fact that this
Court had not yet ruled on the validity of that charge and had granted provisional
liberty to petitioner,
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VOL. 186, JUNE 5, 1990 239
Enrile vs. Salazar
CRIMINAL LAW | PENALTIES
If, indeed, it is desired to make the crime of Rebellion a capital offense (now
punishable by reclusion perpetua), the remedy lies in legislation. But Article 142-
A1 of the Revised Penal Code, along with P.D« No. 942, were repealed, for being
“repressive,” fey EO No. 187 on 5 June 1987. EO 187 further explicitly provided
that Article 134 (and others enumerated) of the Revised Penal Code was “restored
to its full force and effect as it existed before said amendatory decrees.” Having
been so repealed, this Court is bereft of power to legislate into existence, under the
guise of re-examining a settled doctrine, a “creature unknown in law”—the complex
crime of Rebellion with Murder.
The remand of the case to the lower Court for further proceedings is in order.
The Writ of Habeas Corpus has served its purpose.
FELICIANO, J., Concurring
I concur in the result reached by the majority of the Court.
I believe that there are certain aspects of the Hernandez doctrine that, as an
abstract question of law, could stand reexamination or clarification. I have in mind
in particular matters such as the correct or appropriate relationship between
Article 134 and Article 135 of the Revised Penal Code. This is a matter which
relates to the legal concept of rebellion in our legal system. If one examines the
actual terms of Article 134 (entitled: “Rebellion or Insurrection—How Committed”),
it would appear that this Article specifies both the overt acts and the criminal
purpose which, when put together, would constitute the offense of rebellion. Thus,
Article 134 states that “the crime of rebellion is committed by rising publicly and
taking arms against the Government—”(i.e., the overt acts comprising rebellion),
“for the purpose of (i.e., the specific criminal intent or political objective) removing
from the allegiance to said government or its laws the territory of the Republic of
the Philippines
_______________
1 “ART. 142-A. Cases where other offenses are committed.—When by reason or
on the occasion of any of the crimes penalized in this Chapter, acts which constitute
offenses upon which graver penalties are imposed by law are committed, the
penalty for the most serious offense in its maximum period shall be imposed upon
the offender.”
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240 SUPREME COURT REPORTS ANNOTATED
Enrile vs. Salazar
or any part thereof, or any body of land, naval or other armed forces, or depriving
the Chief Executive or the Legislature, wholly or partially, of their powers or
prerogatives.” At the same time, Article 135 (entitled: “Penalty for Rebellion or
Insurrection.”) sets out a listing of acts or particular measures which appear to fall
under the rubric of rebellion or insurrection: “engaging in war against the forces of
the Government, destroying property or committing serious violence, exacting
contributions or diverting public funds from the lawful purpose for which they have
P a g e 55 | 279
been appropriated.” Are these modalities of rebellion generally? Or are they
particular modes by which those “who promote [ ], maintain [ ] or head [ ] a
rebellion or insurrection” commit rebellion, or particular modes of participation in
a rebellion by public officers or employees? Clearly, the scope of the legal concept of
rebellion relates to the distinction between, on the one hand, the indispensable acts
or ingredients of the crime of rebellion under the Revised Penal Code and, on the
other hand, differing optional modes of seeking to carry out the political or social
objective of the rebellion or insurrection.
The difficulty that is at once raised by any effort to examine once more even the
above threshold questions is that the results of such re-examination may well be
that acts which under the Hernandez doctrine are absorbed into rebellion, may be
characterized as separate or discrete offenses which, as a matter of law, can either
be prosecuted separately from rebellion or prosecuted under the provisions of
Article 48 of the Revised Penal Code, which (both Clause 1 and Clause 2 thereof)
clearly envisage the existence of at least two (2) distinct offenses. To reach such a
conclusion in the case at bar, would, as far as I can see, result in colliding with the
fundamental non-retroactivity principle (Article 4, Civil Code; Article 22, Revised
Penal Code; both in relation to Article 8, Civil Code).
The non-retroactivity rule applies to statutes principally. But, statutes do not
exist in the abstract but rather bear upon the lives of people with the specific form
given them by judicial decisions interpreting their norms. Judicial decisions
construing statutory norms give specific shape and content to such norms. In time,
the statutory norms become encrusted with the glosses placed upon them by the
courts and the glosses become integral with the norms (Cf. Caltex v. Palomar, 18
SCRA 247
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VOL. 186, JUNE 5, 1990 241
Enrile vs. Salazar
[1966]). Thus, while in legal theory, judicial interpretation of a statute becomes
part of the law as of the date that the law was originally enacted, I believe this
theory is not to be applied rigorously where a new judicial doctrine is announced,
in particular one overruling a previous existing doctrine of long standing (here, 36
years) and most specially not where the statute construed is criminal in nature and
the new doctrine is more onerous for the accused than the pre-existing one (People
v. Jabinal, 55 SCRA 607 [1974]; People v. Licera, 65 SCRA 270 [1975]; Gumabon v.
Director of Prisons, 37 SCRA 420 [1971]). Moreover, the non-retroactivity rule
whether in respect of legislative acts or judicial decisions has constitutional
implications. The prevailing rule in the United States is that a judicial decision
that retroactively renders an act criminal or enhances the severity of the penalty
prescribed for an offense, is vulnerable to constitutional challenge based upon the
rule against ex post facto laws and the due process clause (Bouie v. City of
Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43 US 188, 51 L. Ed.
2d 260 [1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339
[1989]).
It is urged by the Solicitor General that the non-retroactivity principle does not
present any real problem for the reason that the Hernandez doctrine was based
CRIMINAL LAW | PENALTIES
upon Article 48, second clause, of the Revised Penal Code and not upon the first
clause thereof, while it is precisely the first clause of Article 48 that the
Government here invokes. It is, however, open to serious doubt
whether Hernandez can reasonably be so simply and sharply characterized. And
assuming the Hernandez could be so characterized, subsequent cases refer to
the Hernandez doctrine in terms which do not distinguish clearly between the first
clause and the second clause of Article 48 (e.g., People v. Geronimo, 100 Phil.
90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that
the critical question would be whether a man of ordinary intelligence would have
necessarily read or understood the Hernandez doctrine as referring exclusively to
Article 48, second clause. Put in slightly different terms, the important question
would be whether the new doctrine here proposed by the Government could fairly
have been derived by a man of average intelligence (or counsel of average
competence in the law) from an examination of Articles 134 and
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242 SUPREME COURT REPORTS ANNOTATED
Enrile vs. Salazar
135 of the Revised Penal Code as interpreted by the Court in the Hernandez and
subsequent cases. To formulate the question in these terms would almost be to
compel a negative answer, especially in view of the conclusions reached by the
Court and its several Members today.
Finally, there appears to be no question that the new doctrine that the
Government would have us discover for the first time since the promulgation of the
Revised Penal Code in 1932, would be more onerous for the respondent accused
than the simple application of the Hernandez doctrine that murders which have
been committed on the occasion of and in furtherance of the crime of rebellion must
be deemed absorbed in the offense of simple rebellion
I agree therefore that the information in this case must be viewed as charging
only the crime of simple rebellion.
GUTIERREZ, JR., J., Concurring Opinion
I join the Court’s decision to grant the petition. In reiterating the rule that under
existing law rebellion may not be complexed with murder, the Court emphasizes
that it cannot legislate a new crime into existence nor prescribe a penalty for its
commission. That function is exclusively for Congress.
I write this separate opinion to make clear how I view certain issues arising
from these cases, especially on how the defective informations filed by the
prosecutors should have been treated.
I agree with the ponente that a petition for habeas corpus is ordinarily not the
proper procedure to assert the right to bail Under the special circumstances of this
case, however, the petitioners had no other recourse. They had to come to us.
First, the trial court was certainly aware of the decision in People v.
Hernandez, 99 Phil. 515 (1956) that there is net such crime in our statute books as
rebellion complexed with murder, that murder committed in connection with a
rebellion is absorbed by the crime of rebellion, and that a resort to arms resulting
P a g e 56 | 279
in the destruction of life or property constitutes neither two or more offenses nor a
complex crime but one crime—rebellion pure and simple.
Second, Hernandez has been the law for 34 years. It has been reiterated in
equally sensational cases. All lawyers and even
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VOL. 186, JUNE 5, 1990 243
Enrile vs. Salazar
law students are aware of the doctrine. Attempts to have the doctrine re-examined
have been consistently rejected by this Court
Third, President Marcos through the use of his then legislative powers, issued
Pres. Decree 942, thereby installing the new crime of rebellion complexed with
offenses like murder where graver penalties are imposed by law. However,
President Aquino using her then legislative powers expressly repealed PD 942 by
issuing Exec. Order 187. She thereby erased the crime of rebellion complexed with
murder and made it clear that the Hernandez doctrine remains the controlling rule.
The prosecution has not explained why it insists on resurrecting an offense
expressly wiped out by the President. The prosecution, in effect, questions the
action of the President in repealing a repressive decree, a decree which, according
to the repeal order, is violative of human rights.
Fourth, any re-examination of the Hernandez doctrine brings the ex post facto
principle into the picture. Decisions of this Court form part of our legal system.
Even if we declare that rebellion may be complexed with murder, our declaration
can not be made retroactive where the effect is to imprison a person for a crime
which did not exist until the Supreme Court reversed itself.
And fifth, the attempts to distinguish this case from the Hernandez case by
stressing that the killings charged in the information were committed “on the
occasion of, but not a necessary means for, the commission of rebellion” result in
outlandish consequences and ignore the basic nature of rebellion. Thus, under the
prosecution theory a bomb dropped on PTV-4 which kills government troopers
results in simple rebellion because the act is a necessary means to make the
rebellion succeed. However, if the same bomb also kills some civilians in the
neighborhood, the dropping of the bomb becomes rebellion complexed with murder
because the killing of civilians is not necessary for the success of a rebellion and,
therefore, the killings are only “on the occasion of but not a “necessary means for”
the commission of rebellion.
This argument is puerile.
The crime of rebellion consists of many acts. The dropping of one bomb cannot
be isolated as a separate crime of rebellion.
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244 SUPREME COURT REPORTS ANNOTATED
Enrile vs. Salazar
Neither should the dropping of one hundred bombs or the firing of thousands of
machine gun bullets be broken up into a hundred or thousands of separate offenses,
if each bomb or each bullet happens to result in the destruction of life and property.
The same act cannot be punishable by separate penalties depending on what
strikes the fancy of prosecutors—punishment for the killing of soldiers or
CRIMINAL LAW | PENALTIES
retribution for the deaths of civilians. The prosecution also loses sight of the
regrettable fact that in total war and in rebellion the killing of civilians, the laying
waste of civilian economies, the massacre of innocent people, the blowing up of
passenger airplanes, and other acts of terrorism are all used by those engaged in
rebellion. We cannot and should not try to ascertain the intent of rebels for each
single act unless the act is plainly not connected to the rebellion. We cannot use
Article 48 of the Revised Penal Code in lieu of still-to-beenacted legislation. The
killing of civilians during a rebel attack on military facilities furthers the rebellion
and is part of the rebellion.
The trial court was certainly aware of all the above considerations. I cannot
understand why the trial Judge issued the warrant of arrest which categorically
states therein that the accused was not entitled to bail. The petitioner was
compelled to come to us so he would not be arrested without bail for a nonexistent
crime. The trial court forgot to apply an established doctrine of the Supreme Court.
Worse, it issued a warrant which reversed 34 years of established procedure based
on a well-known Supreme Court ruling.
All courts should remember that they form part of an independent judicial
system; they do not belong to the prosecution service. A court should never play
into the hands of the prosecution and blindly comply with its erroneous
manifestations. Faced with an information charging a manifestly non-existent
crime, the duty of a trial court is to throw it out. Or, at the very least and where
possible, make it conform to the law.
A lower court cannot re-examine and reverse a decision of the Supreme Court
especially a decision consistently followed for 34 years. Where a Judge disagrees
with a Supreme Court ruling, he is free to express his reservations in the body of
his decision, order, or resolution. However, any judgment he renders, any order he
prescribes, and any processes he issues must
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VOL. 186, JUNE 5, 1990 245
Enrile vs. Salazar
follow the Supreme Court precedent. A trial court has no jurisdiction to reverse or
ignore precedents of the Supreme Court. In this particular case, it should have been
the Solicitor General coming to this Court to question the lower court’s rejection of
the application for a warrant of arrest without bail. It should have been the
Solicitor-General provoking the issue of re-examination instead of the petitioners
asking to be freed from their arrest for a non-existent crime.
The principle bears repeating:
“Respondent Court of Appeals really was devoid of any choice at all. It could not
have ruled in any other way on the legal question raised. This Tribunal having
spoken, its duty was to obey. It is as simple as that. There is relevance to this
excerpt from Barrera v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98) The delicate
task of ascertaining the significance that attaches to a constitutional or statutory
provision, an executive order, a procedural norm or a municipal ordinance is
committed to the judiciary. It thus discharges a role no less crucial than that
appertaining to the other two departments in the maintenance of the rule of law.
To assure stability in legal relations and avoid confusion, it has to speak with one
P a g e 57 | 279
voice. It does so with finality, logically and rightly, through the highest judicial
organ, this Court. What it says then should be definitive and authoritative, binding
on those occupying the lower ranks in the judicial hierarchy. They have to defer
and to submit.’ (Ibid, 107. The opinion of Justice Laurel in People v. Vera, 65 Phil.
56 [1937] was cited). The ensuing paragraph of the opinion in Barrera further
emphasizes the point: Such a thought was reiterated in an opinion of Justice J.B.L.
Reyes and further emphasized in these words: ‘Judge Gaudencio Cloribel need not
be reminded that the Supreme Court, by tradition and in our system of judicial
administration, has the last word on what the law is; it is the final arbiter of any
justifiable controversy. There is only one Supreme Court from whose decisions all
other courts should take their bearings.’ ” (Ibid. Justice J.B.L. Reyes spoke thus
in Albert v. Court of First Instance of Manila (Br. VI), L-26364, May 29, 1968, 23
SCRA 948, 961. (Tugade v. Court of Appeals, 85 SCRA 226 [1978]. See also Albert
v. Court of First Instance, 23 SCRA 948 [1968] and Vir-Jen Shipping and Marine
Services, Inc. v. NLRC, 125 SCRA 577 [1983])
I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even
more inexplicable. In the case of the Panlilios, any probable cause to commit the
non-existent crime of rebellion complexed with murder exists only in the minds of
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246 SUPREME COURT REPORTS ANNOTATED
Enrile vs. Salazar
the prosecutors, not in the records of the case.
I have gone over the records and pleadings furnished to the members of the
Supreme Court. I listened intently to the oral arguments during the hearing and it
was quite apparent that the constitutional requirement of probable cause was not
satisfied. In fact, in answer to my query for any other proofs to support the issuance
of a warrant of arrest, the answer was that the evidence would be submitted in due
time to the trial court.
The spouses Panlilio and one parent have been in the restaurant business for
decades. Under the records of these petitions, any restaurant owner or hotel
manager who serves food to rebels is a co-conspirator in the rebellion. The
absurdity of this proposition is apparent if we bear in mind that rebels ride in buses
and jeepneys, eat meals in rural houses when mealtime finds them in the vicinity,
join weddings, fiestas, and other parties, play basketball with barrio youths, attend
masses and church services and otherwise mix with people in various gatherings.
Even if the hosts recognize them to be rebels and fail to shoo them away, it does
not necessarily follow that the former are co-conspirators in a rebellion.
The only basis for probable cause shown by the records of the Panlilio case is
the alleged fact that the petitioners served food to rebels at the Enrile household
and a hotel supervisor asked two or three of their waiters, without reason, to go on
a vacation. Clearly, a much, much stronger showing of probable cause must be
shown.
In Salonga v. Cruz Paño, 134 SCRA 438 (1985), then Senator Salonga was
charged as a conspirator in the heinous bombing of innocent civilians because the
man who planted the bomb had, sometime earlier, appeared in a group photograph
taken during a birthday party in the United States with the Senator and other
CRIMINAL LAW | PENALTIES
guests. It was a case of conspiracy proved through a group picture. Here, it is a case
of conspiracy sought to proved through the catering of food.
The Court in Salonga stressed:
‘The purpose of a preliminary investigation is to secure the innocent against hasty,
malicious and oppressive prosecution, and to protect him from an open and public
accusation of crime, from the trouble, expense and anxiety of a public trial, and also
to protect the state from useless and expensive trials. (Trocio v. Manta, 118 SCRA
247
VOL. 186, JUNE 5, 1990 247
Enrile vs. Salazar
241; citing Hashimn v. Boncan, 71 Phil. 216). The right to a preliminary
investigation is a statutory grant, and to withhold it would be to transgress
constitutional due process. (See People v. Oandasa, 2S SCRA 277) However, in
order to satisfy the due process clause it is not enough that the preliminary
investigation is conducted in the sense of making sure that a transgressor shall not
escape with impunity. A preliminary investigation serves not only the purposes of
the State. More important, it is a part of the guarantees of freedom and fair play
which are birthrights of all who live in our country. It is, therefore, imperative upon
the fiscal or the judge as the case may be, to relieve the accused from the pain of
going through a trial once it is ascertained that the evidence is insufficient to
sustain a prima facie case or that no probable cause exists to form a sufficient belief
as to the guilt of the accused. Although there is no general formula or fixed rule for
the determination of probable cause since the same must be decided in the light of
the conditions obtaining in given situations and its existence depends to a large
degree upon the finding or opinion of the judge conducting the examination, such a
finding should not disregard the facts before the judge nor run counter to the clear
dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391). The
judge or fiscal, therefore, should not go on with the prosecution in the hope that
some credible evidence might later turn up during trial for this would be a flagrant
violation of a basic right which the courts are created to uphold. It bears repeating
that the judiciary lives up to its mission by vitalizing and not denigrating
constitutional rights. So it has been before. It should continue to be so.” (id., pp.
461-462)
Because of the foregoing, I take exception to that part of the ponencia which will
read the informations as charging simple rebellion. This case did not arise from
innocent error. If an information charges murder but its contents show only the
ingredients of homicide, the Judge may rightly read it as charging homicide. In
these cases, however, there is a deliberate attempt to charge the petitioners for an
offense which this Court has ruled as non-existent. The prosecution
wanted Hernandez to be reversed. Since the prosecution has filed informations for
a crime which, under our rulings, does not exist, those informations should be
treated as null and void. New informations charging the correct offense should be
filed. And in G.R, No, 92164 an extra effort should be made to see whether or not
the principle in Salonga v. Cruz Paño, et al. (supra) has been violated.
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248 SUPREME COURT REPORTS ANNOTATED
P a g e 58 | 279
 Enrile vs. Salazar
The Court is not, in any way, preventing the Government from using more effective
weapons to suppress rebellion. If the Government feels that the current situation
calls for the imposition of more severe penalties like death or the creation of new
crimes like rebellion complexed with murder, the remedy is with Congress, not the
courts.
I, therefore, vote to GRANT the petitions and to ORDER the respondent court
to DISMISS the void informations for a nonexistent crime.
PADILLA, J., Separate Opinion
I concur in the majority opinion insofar as it holds that the ruling in People vs.
Hernandez, 99 Phil. 515 “remains binding doctrine operating to prohibit the
complexing of rebellion with any other offense committed on the occasion thereof,
either as a means necessary to its commission or as an unintended effect of an
activity that constitutes rebellion.”
I dissent, however, from the majority opinion insofar as it holds that the
information in question, while charging the complex crime of rebellion with murder
and multiple frustrated murder, “is to be read as charging simple rebellion.”
The present cases are to be distinguished from the Hernandez case in at least
one (1) material respect. In the Hernandez case, this Court was confronted with
an appealed case, i.e., Hernandez had been convicted by the trial court of the
complex crime of rebellion with murder, arson and robbery, and his plea to be
released on bail before the Supreme Court, pending appeal, gave birth to the now
celebrated Hernandez doctrine that the crime of rebellion complexed with murder,
arson and robbery does not exist. In the present cases, on the other hand, the Court
is confronted with an original case, i.e., where an information has been recently
filed in the trial court and the petitioners have not even pleaded thereto.
Furthermore, the Supreme Court, in the Hernandez case, was “ground-
breaking” on the issue of whether rebellion can be complexed with murder, arson,
robbery, etc. In the present cases, on the other hand, the prosecution and the lower
court, not only had the Hernandez doctrine (as case law), but Executive Order No.
187 of President Corazon C. Aquino dated 5 June
249
VOL. 186, JUNE 5, 1990 249
Enrile vs. Salazar
1987 (as statutory law) to bind them to the legal proposition that the crime of
rebellion complexed with murder, and multiple frustrated murder does not exist
And yet, notwithstanding these unmistakable and controlling beacon lights—
absent when this Court laid down the Hernandez doctrine—the prosecution has
insisted in filing, and the lower court has persisted in hearing, an information
charging the petitioners with rebellion complexed with murder an multiple
frustrated murder. That information is clearly a nullity and plainly void ab
initio. Its head should not be allowed to surface. As a nullity in substantive law, it
charges nothing; it has given rise to nothing. The warrants of arrest issued
pursuant thereto are as null and void as the information on which they are
CRIMINAL LAW | PENALTIES
anchored. And, since the entire question of the information’s validity is before the
Court in these habeas corpus cases, I venture to say that the information is fatally
defective, even under procedural law, because it charges more than one (1) offense
(Sec. 13, Rule 110, Rules of Court}.
I submit then that it is not for this Court to energize a dead and, at best, fatally
decrepit information by labelling or “baptizing” it differently from what it
announces itself to be. The prosecution must file an entirely new and
proper information, for this entire exercise to merit the serious consideration of the
courts.
ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of
arrest, and ORDER the information for rebellion complexed with murder and
multiple frustrated murder in Criminal Case Nos. 90-10941, RTC of Quezon City,
DISMISSED.
Consequently, the petitioners should be ordered permanently released and
their bails cancelled.
BIDIN, J., Concurring and Dissenting:
I concur with the majority opinion except as regards the dispositive portion thereof
which orders the remand of the case to the respondent judge for further proceedings
to fix the amount of bail to be posted by the petitioner.
I submit that the proceedings need not be remanded to the respondent judge
for the purpose of fixing bail since we have construed the indictment herein as
charging simple rebellion, an offense which is bailable. Consequently, habeas
corpus is the
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250 SUPREME COURT REPORTS ANNOTATED
Enrile vs. Salazar
proper remedy available to petitioner as an accused who had feeen charged with
simple rebellion, a bailable offense but who had been denied his right to bail by the
respondent judge in violation of petitioner’s constitutional right to bail. In view
thereof, the responsibility of fixing the amount of bail and approval thereof when
filed, devolves upon us, if complete relief is to be accorded to petitioner in the
instant proceedings.
It is indubitable that before conviction, admission to bail is a matter of right to
the defendant, accused before the Regional Trial Court of an offense less than
capital (Section 13 Article III, Constitution and Section 3, Rule 114). Petitioner is,
before Us, on a petition for habeas corpus praying, among others, for his provisional
release on bail. Since the offense charged (construed as simple rebellion) admits of
bail, it is incumbent upon us in the exercise of our jurisdiction over the petition
for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to
grant petitioner his right to bail and having admitted him to bail, to fix the amount
thereof in such sums as the court deems reasonable. Thereafter, the rules require
that “the proceedings together with the bond” shall forthwith be certified to the
respondent trial court (Section 14, Rule 102).
P a g e 59 | 279
 Accordingly, the cash bond in the amount of P100,000.00 posted by petitioner
for his provisional release pursuant to our resolution dated March 6, 1990 should
now be deemed and admitted as his bail bond for his provisional release in the case
(simple rebellion) pending before the respondent judge, without necessity of a
remand for further proceedings, conditioned for his (petitioner’s) appearance before
the trial court to abide its order or judgment in the said case.
SARMIENTO, J., Concurring in part and dissenting in part:
I agree that People v. Hernandez1 should abide. More than three decades after
which it was penned, it has firmly settled in the tomes of our jurisprudence as
correct doctrine.
As Hernandez put it, rebellion means “engaging in war against the forces of the
government,”2 which implies “resort to arms,
_______________
199 Phil. 515 (1956).
2Supra, 520.
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VOL. 186, JUNE 5, 1990 251
Enrile vs. Salazar
requisition of property and services, collection of taxes and contributions, restraint
of liberty, damage to property, physical injuries and loss of life, and the hunger,
illness and unhappiness that war leaves in its wake....”3 whether committed in
furtherance, of as a necessary means for the commission, or in the course, of
rebellion. To say that rebellion may be completed with any other offense, in this
case murder, is to play into a contradiction in terms because exactly, rebellion
includes murder, among other possible crimes.
I also agree that the information may stand as an accusation for simple
rebellion. Since the acts complained of as constituting rebellion have been
embodied in the information, mention therein of murder as a complexing offense is
a surplusage, because in any case, the crime of rebellion is left fully described. 4
At any rate, the government need only amend the information by a clerical
correction, since an amendment will not alter its substance.
I dissent, however, insofar as the majority orders the remand of the matter of
bail to the lower court. I take it that when we, in our Resolution of March 6, 1990,
granted the petitioner “provisional liberty” upon the filing of a bond of P100,000.00,
we granted him bail. The fact that we gave him “provisional liberty” is in my view,
of no moment, because bail means provisional liberty. It will serve no useful
purpose to have the trial court hear the incident again when we ourselves have
been satisfied that the petitioner is entitled to temporary freedom.
Proceedings in both cases remanded to respondent judge to fix the amount of
bail.
CRIMINAL LAW | PENALTIES
Note.—Amnesty granted by former President Marcos covers crimes for
violation of subversion laws or those defined under crimes against public order.
(Macaga-an vs. People, 152 SCRA 480.)
——o0o——
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VOL. 43, FEBRUARY 28, 1972 301
Napolis vs. Court of Appeals
No. L-28865. February 28, 1972.
NICANOR NAPOLIS, petitioner, vs. COURT OF APPEALS, and THE
PEOPLE OF THE PHILIPPINES, respondents.
_______________
13 Rule 107, sec. l(c) of the old Rules, now Rule 111, sec. 3(b) of the Revised
Rules of Court.
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302 SUPREME COURT REPORTS ANNOTATED
Napolis vs. Court of Appeals
Remedial law; Exceptions to conclusiveness of factual findings of the Court of
Appeals.—On appeal from a decision of the Court of Appeals, the findings of fact
made in said decision are final, except—(1) When the conclusion is a finding
grounded entirely on speculations, surmises or conjectures; (2) When the inference
is manifestly mistaken, absurd or impossible; (3) When there is a grave abuse of
discretion; (4) When the judgment is based on a misapprehension of facts; (5) When
the findings of fact are conflicting; (6) When the Court of Appeals, in making its
findings, went bey ond the issues of the case and the same is contrary to the
admissions of both appellant and appellee.
Criminal law; Characterization of crime of robbery with force upon things
where robber lays his hands upon a person.—The doctrine laid down in previous
cases whereby in case of robbery inside an inhabited house, the thief, in addition,
lays his hands upon any person without committing any of the crimes or inflicting
any of the injuries mentioned in sub-paragraphs (1) to (4) of Art. 294 of the Revised
Penal Code, the imposable penalty decreed—under paragraph (15) thereof—is
much lighter defies logic and reason and is now expressly abandoned. It is more
plausible to believe that Art. 294 applies only where robbery with violence against
or intimidation of person takes place without entering an inhabited house, under
the conditions set forth in Art. 299 of the Revised Penal Code, When tie elements
of both provisions are present, the crime is a complex one, calling for the
imposition—as provided in Art. 48 of the Code—of the penalty for the most serious
offense, in its maximum period, which, in the case at bar, is reclusion temporal in
its maximum period.
P a g e 60 | 279
APPEAL from a decision of the Court of Appeals. Lucero, J.
The facts are stated in the opinion of the court.
Victor Arichea for petitioner.
Solicitor General Felix V. Maka siar, Assistant Solicitor General Antonio G.
Ibarra and Solicitor Conrado T. Limcaoco for respondents.
CONCEPCION, C.J.:
Appeal taken by Nicanor Napolis from a decision of the Court of Appeals affirming
that of the Court of First Instance of Bataan, the dispositive part of which reads as
follows:
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VOL. 43, FEBRUARY 28, 1972 303
Napolis vs. Court of Appeals
“IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby finds the
accused Bonifacio Malana, Nicanor Napolis and Apolinario Satimbre guilty bey ond
reasonable doubt of the crime of robbery in band and sentences Bonifacio Malana
as an accessory after the fact to suffer imprisonment of from six (6) months, arresto
mayor, as minimum to six (6) years, prision correccional, as maximum and to
indemnify the offended party, Ignacio Peñaflor in the sum of P80.00 with
subsidiary imprisonment in case of insolvency but not to exceed one-third (1/3) of
the principal penalty and the accused Nicanor Napolis and Apolinario Satimbre to
suffer imprisonment of from ten (10) y ears and one (1) day, prision mayor, as
minimum, to seventeen (17) years, four (4) months and one (1) day, reclusion
temporal, as maximum, both to indemnify the spouses Ignacio Peñaflor and
Casimira Lagman in the sum of Two Thousand Five Hundred Fifty-Seven Pesos
(P2,557.00) without subsidiary imprisonment in case of insolvency and all three to
pay the proportionate part of the costs.”
The main facts, on which there is no dispute, are set forth in the decision of the
Court of Appeals, from which We quote:
“At about 1:00 o’clock in the early morning of October 1, 1956, Mrs. Casimira
Lagman Peñaflor, 47-y ear old wife of Ignacio Peñaflor, the owner of a store located
at the new highway, Hermosa, Bataan, after answering a minor call of nature,
heard the barkings of the dog nearby indicating the presence of strangers around
the vicinity. Acting on instinct, she woke up husband Ignacio Peñaflor who, after
getting his flashlight and .38 caliber revolver, went down the store to take a look.
As he approached the door of the store, it suddenly gave way having been forcibly
pushed and opened by 4 men, one of them holding and pointing a machinegun.
Confronted by this peril, Ignacio Peñaflor fired his revolver but missed. Upon
receiving from someone a stunning blow on the head, Ignacio fell down but he
pretended to be dead. He was hogtied by the men. The fact, however, was that he
did not lose consciousness (tsn. 5, I). The men then went up the house. One of the
robbers asked Mrs. Casimira L. Peñaflor for money saying that they are people
from the mountain. Mrs. Casimira L. Peñaflor, realizing the danger, took from
under the mat the bag containing P2,000.00 in cash and two rings worth P350.00
CRIMINAL LAW | PENALTIES
and delivered them to the robber. Thereupon, that robber opened and ransacked
the wardrobe. Then they tied the hands of Mrs Casimira L. Peñaflor and those of
her two sons. After telling them to lie down, the robbers covered them with blankets
and left. The revolver of Ignacio, valued at P150.00, was taken by the robbers. The
spouses thereafter called for help and Councilor Almario, a neighbor, came and
untied Ignacio
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304 SUPREME COURT REPORTS ANNOTATED
Napolis vs. Court of Appeals
Peñaflor. The robbery was reported to the Chief of Police of Hermosa and to the
Philippine Constabulary.
“Chief of Police Delfin Lapid testified that he went to the premises upon
receiving the report of Councilor Almario and found owner Ignacio Peñaflor with a
wound on the head (tsn. 23, I). The wardrobe was ransacked and things scattered
around. It appears that the robbers bore a hole on the sidewall of the ground floor
of the store and passed through it to gain entrance. According to Chief of Police
Delfin Lapid, ‘they removed the adobe stone and that is the place where they passed
through’ (tsn. 24, I). In that same morning, policeman Melquiadea Samaniego
reported seeing suspicious characters passing through a nearby field and when the
field was inspected, the authorities were able to locate a greasegun with 5 bullets
and a pistol with 3 bullets (tsn. 24, I, testimony of Chief of Police). x x x.”
It appears that, shortly after the occurrence, a criminal complaint for robbery in
hand was filed with the Justice of the Peace Court of Hermosa, Bataan. Named as
defendants in the complaint, as subsequently amended, were Nicanor Napolis,
Bonifacio Malana, Ben de la Cruz, Mauricio Anila, alias Mori, Jose
Escabel, alias Pepe, Antonio Bededia, alias Toning, John Doe, alias Somray
Casimiro, Apolinario Satimbre, Paul Doe, et al. Napolis, Malana, Anila and
Casimiro having waived their right to a preliminary investigation, the case, insofar
as they are concerned, was forwarded to the Court of First Instance of Bataan,
where the corresponding information was filed. As subsequently amended, by the
inclusion, as defendants therein, of Antonio Bededia alias Toning, Domingo
Flores alias Eko, Ben de la Cruz, Jose Escabel alias Pepe, Apolinario Satimbre,
Oarlito Veloso and Paul Doe, it is alleged in said information:
“That on or about 1:00 o’clock in the early morning of October 1, 1956, in the
Municipality of Hermosa, Province of Bataan, Philippines, and within the
jurisdiction of this Honorable Court, the herein accused Bonifacio Malana, Nicanor
Napolis. Ben de la Cruz, Mauricio Anila, Alias Mori, Jose Escabel, Alias Pepe,
Antonio Bededia, alias Toning, John Doe, Alias Sammy Casimiro, Apolinario
Satimbre, Carlito Veloso, Domingo Flores, Alias Eko, and Paul Doe, by conspiring,
confederating and helping one another, with the intent to gain and armed with a
Grease Gun, Three (3) caliber .45 pistols and two (2) revolvers, did then and there
willfully, unlawfully and feloniously, entered the dwelling of the spouses IGNACIO
PEÑAFLOR and CASIMIRA L. PEÑAFLOR by boring a hole under
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VOL. 43, FEBRUARY 28, 1972 305
Napolis vs. Court of Appeals
P a g e 61 | 279
the sidewall of the ground floor of the house and once inside, attack, assault and
hit Ignacio Peñaflor with the handle of the Grease Gun causing him to fall on the
ground and rendering him unconscious, tied his hands and feet and then leave him;
that the same accused approached Casimira L. Peñaflor, threatened her at gun
point and demanded money; that the same accused while inside the said house
searched and ransacked the place and take and carry away the following cash
money and articles belonging to said spouses Ignacio Peñaflor and Casimira L.
Peñaflor, to wit: P2,000.00 in cash, Philippine Currency, One (1) ring (Brillante)
valued at P350.00, One (1) licensed Commando Colt Revolver, Serial No. 532132
and One (1) Flashlight, valued at P7.00, to the damage and prejudice of said
spouses in the total sum of TWO THOUSAND FIVE HUNDRED FIFTY-SEVEN
PESOS, (P2,557.00) Philippine Cur-rency.”
At the trial of Malana, Napolis, Satimbre, De la Cruz, Anila, Casimiro and
Flores,1 the evidence for the prosecution consisted of the testimo ny of the offended
parties, Ignacio Peñaflor and his wife Casimira Lagman Peñaflor, Provincial Fiscal
Eleno L. Kahayon, Clerk of Court Pedro Aldea, Deputy Clerk of Court Eulogio C.
Mina, Delfin Lapid, the Chief of Police of Hermosa, Bataan , and Lt. Luis Sacra-
mento of the Constabulary and the affidavits, Exhibits A, B and C of defendants
Napolis, Satimbre and Malana, respectively, admitting their participation in the
commission of the crime charged.
Mr. and Mrs. Peñaflor testified mainly on the robbery involved in the charge,
whereas Fiscal Kahayon narrated the circumstances under which the affidavit
Exhibit A was subscribed and sworn to before him by appellant Napolis; Police
Chief Lapid and Lt. Sacramen to dwelt on the investigations conducted by them
and the circumstances under which said defendants made their aforementioned
affida-vits; and Clerk of Court Pedro Aldea and Deputy Clerk of Court Eulogio C.
Mina explained how Exhibits B and C were subscribed and sworn to before them
by defendants Satimbre and Malana, respectively.
Upon the other hand, Napolis tried to establish an alibi. Testifying in his own
defense, he would have Us believe that
_______________
1 Other defendants were granted a separate trial, whereas still others had not
been apprehended as yet.
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306 SUPREME COURT REPORTS ANNOTATED
Napolis vs. Court of Appeals
on October 1, 1956, he was in his house in Olongapo, Zambales, because of a tooth
extracted from him by one Dr. Maginas.
Defendant Satimbre, in turn, introduced his own testimony and that of his wife
Engracia Mendoza. Satimbre claimed to be innocent of the crime charged and said
that, although reluctant to sign Exhibit B, he eventually signed thereon, upon the
advice of his wife Engracia Mendoza—who sought to corroborate him—and Mayor
Guillermo Arcenas of Hermosa, in order that he may not be implicated in a robbery
CRIMINAL LAW | PENALTIES
that took place in Balamja, Bataan, and that he could be sent back to his hometown,
Hermosa, Bataan.
Before the conclusion of the trial, the court of first instance of Bataan dismissed
the case as against defendants Flores, Anila, Casimiro and De la Cruz.
In due course, said court convicted Nicanor Napolis, Bonifacio Malana and
Apolinario Satimbre, as above indicated. Said defendants appealed to the Court of
Appeals which, however, dismissed Malana’s appeal, and affirmed the decision of
the Court of First Instance, insofar as Napolis and Satimbre are concerned,
Satimbre did not appeal from said decision of the Court of Appeals, whereas
Napolis alleges that said court has erred—
1. “I.In affirming in toto the conviction of petitioner herein, of the crime
charged based upon a lurking error of identity.
2. “II.In affirming the conviction of petitioner based upon an extra-judicial
confession extracted through duress.
3. “III.In affirming the decision of the court a quo based upon the evidence
on record adduced during the trial.
4. “IV.In deciding the case not in accordance with the provision of law and
jurisprudence on the matter.”
Under the first assignment of error, it is urged that appellant has not been
sufficiently identified as one of those who perpetrated the crime charged. In support
of this contention, it is argued that the identification made by Mrs. Peñaflor was
due to a picture of appellant taken by Lt. Sacramento from the files of the police in
Olongapo, Zambales, and then shown to her, before he (appellant) was appre-
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VOL. 43, FEBRUARY 28, 1972 307
Napolis vs. Court of Appeals
hended and then brought to her presence for identification, It is thus implied that
Mrs. Peñaflor identified him in consequence of the suggestion resulting from the
picture she had seen before he was taken to her for said purpose. The defense
further alleges that she could not have recognized appellant herein, in the evening
of the occurrence, because the same was dark, and the flashlight used by the male-
factors was then focused downward.
Appellant’s pretense is, however, devoid of factual basis. The record shows that
the authorities were notified immediately after the occurrence; that, soon after,
peace officers—Police Chief Lapid and PC Lt. Sacramento—repaired to the house
of Mr. and Mrs. Peñaflor and investigated them; that based upon the description
given by Mrs. Peñaflor, one individual was apprehended and then presented to Mrs.
Peñaflor, who said that he was not one of the thieves; that another person
subsequently arrested and taken to Mrs. Peñaflor was, similarly, exonerated by
her; that in the course of the investigation conducted by the Philippine
Constabulary, Lt. Sacramento later brought Mrs. Peñaflor to the offices of the
police force in Olongapo and showed her the pictures of police characters on file
therein; that among those pictures, she noticed that of appellant herein, who, she
P a g e 62 | 279
believed, was one of the culprits; and that appellant was, therefore, arrested and
brought to Mrs. Peñaflor, who positively identified him as one of the malefactors.
In other words, Lt. Sacramento did not suggest to Mrs. Peñaflor, through the
aforementioned picture of appellant, that he was one of the thieves. It was she who
told Lt. Sacramento that said picture was that of one of the thieves. Besides, the
fact that Mrs. Peñaflor readily exonerated the first two suspects, arrested by the
authorities, shows that appellant herein would not have been identified by her if
she were not reasonably certain about it.
Then, again, she had ample opportunity to recognize appellant herein because
it was he who demanded money from her and to whom she delivered P2,000 in cash
and two (2) rings worth P350; it was, also, he who opened and ransacked her
wardrobe; and it was he who tied her hands and those of her two sons. These series
of acts, performed in
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308 SUPREME COURT REPORTS ANNOTATED
Napolis vs. Court of Appeals
her presence, consumed sufficient time—from 10 to 20 minutes—to allow her
eyesight to be adjusted to existing conditions, and, hence, to reco gnize some of the
robbers. The night was dark; but, there were two flashlights switched on, namely,
that of her husband, and the one used by the thieves. Although the latter was, at
times, focussed downward, it had to be aimed, sometimes, in another direction,
particularly when the money and rings were delivered to appellant herein, and
when he opened and ransacked the wardrobe of Mrs. Peñaflor. Lastly, her
testimony was confirmed by other circumstances presently to be mentioned, in
connection with the consideration of the other alleged errors pointed out by
appellant herein.
The second assignment of error is based upon a wrong premise—that
appellant’s co nviction was based upon his extrajudicial confession and that the
same had been made under duress.
Said extrajudicial confession was merely one of the tors considered by His
Honor, the trial Judge, and the Court of Appeals in concluding that the evidence
for the defense cannot be relied upon and that the witnesses for the prosecution
had told the truth. Besides, appellant’s confession was not tainted with duress. In
this connection, the Court of Appeals had the following to say:
“Apart from the reliability of Mrs. Casimiro Lagman Peñaflor’s identification, we
have the extrajudicial confession of appellant Nicanor Napolis, marked Exh. A,
subscribed and sworn to by said accused on October 26, 1956, 25 day s after the
occurrence, before Provincial Fiscal Eleno L. Kahayon, the 64-y ear old prosecutor
who, since July 18, 1946, was the Provincial Fiscal of Bataan up to the present. His
testimony shows that he read the confession, Exh. A, to said accused in the Tagalog
dialect; asked him whether he understood it to which appellant Napolis answered
‘yes’; inquired whether he was coerced to which he replied ‘No’; and then, required
him to raise his hand in affirmation which he did (tsn. 14-15, I). Thereupon,
appellant Napolis signed the confession in his (Fiscal’s) presence. Provincial Fiscal
Eleno L. Kahay on further testified that he saw no signs of phy sical violence on
the person of the appellant who appeared normal in his appearance tsn. 15, I). In
CRIMINAL LAW | PENALTIES
this confession, Exh. A, appellant Napolis related that it was co-accused Antonio
Bededia (still-at-large) who pointed the greasegun to husband Ignacio Peñaflor and
who
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VOL. 43, FEBRUARY 28, 1972 309
Napolis vs. Court of Appeals
hit him (Peñaflor) on the head and that it was co-accused Ben de la Cruz (whose
case was dismissed) who wrested Peñaflor’s revolver. For his part, appellant
Napolis admitted that it was he who talked to Mrs. Casimira L. Peñaflor and it was
he who got the money bag. The loot, according to him, was split from which he
received a share of P237.00 (Answer to Q, A, Exh. A). Among others, he mentioned
appellant Bonifacio Malana as the owner of the greasegun and the one who got
Peñaflor’s revolver from the hands of co-accused Ben de la Cruz. x x x.”
It may not be amiss to advert to the fact that, on appeal from a decision of the Court
of Appeals, the findings of fact made in said decision are final, except—
“(1) When the conclusion is a finding grounded entirely on speculations, surmises
or conjectures; (2) when the inference is manifestly mistaken, absurd or impossible;
(3) when there is a grave abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the
Court of Appeals, in making its findings, went bey ond the issues of the case and
the same is contrary to the admissions of both appellant and appellee.”2
and that the case at bar does not fall under any of the foregoing-exceptions.
The third assignment of error is predicated upon the theory that the evidence
for the prosecution is contradictory and, hence, unworthy of credence. Counsel for
the defense alleges that, whereas Ignacio Peñaflor said that the thieves had entered
his house by forcing its door open, Mrs. Peñaflor testified that their entry was
effected through an excavation by the side of the house, and the chief of police
affirmed that the malefactors had removed a piece of wood and an adobe stone to
get into said house. No such contradictions, however, exist. The house of Mr. and
Mrs. Peñaflor consisted of two (2) parts, one of which was a store and the other the
dwelling proper, adjoining the store, which had a doorleading thereto (to the
dwelling proper). Mrs. Peñaflor testified that the culprits had entered the store by
removing an adobe stone from a wall thereof, and
_______________
Garcia v. Court of Appeals, L-26490, June 30, 1970, citing Roque v. Buan, et
2
al., L-22459, Oct. 31, 1967; Ramos v. Pepsi Cola Bottling Co., L-22533, Feb. 9,
1967; Hilario, Jr. v. City of Manila, L-19570, Sept. 14, 1967.
310
310 SUPREME COURT REPORTS ANNOTATED
Napolis vs. Court of Appeals
this was corroborated by the chief of police, although he added that the malefactors
had, also, removed a piece of wood from said wall. Upon the other hand, the
P a g e 63 | 279
testimony of Mr. Peñaflor referred to a door, inside the store, leading to the
dwelling proper, as distingu ished from the store.
In the light of the foregoing, and considering that the findings of fact made by
the Court of Appeals are supported by those of His Honor, the trial Judge, who had
observed the behaviour of the witnesses during the trial, it is clear to Us that the
first three (3) assignments of error are untenable.
The fourth assignment of error refers to the characterization of the crime co
mmitted and the proper penalty therefor. It should be noted that the Court of
Appeals affirmed the decision of the trial cou rt convicting Napolis, Malana and
Satimbre of the crime of robbery committed by armed persons, in an inhabited
house, entry therein having been made by breaking a wall, as provided in Article
299 (a) of the Revised Penal Code, and, accordingly, sentencing Napolis and
Satimbre to an indeterminate penalty ranging from ten (10) years and one (1) day
of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1)
day of reclusion temporal, as ma x i mu m, wh ic h is in accordance with said legal
provision.
In addition, however, to performing said acts, the male-factors had, also, used
violence against Ignacio Peñaflor, and intimidation against his wife, thereby
infringing Article 294 of the same Code, under conditions falling under sub-
paragraph (5) of said article, which prescribes the penalty of prision correccional in
its maximum period to prision mayor in its medium period, which is lighter than
that prescribed in said Article 299, although, factually, the crime co mmitted
is more serious than that covered by the latter provision. This Court had previously
ruled—
“x x x that where robbery, though committed in an inhabited house, is characterized
by intimidation, this factor ‘supplies the controlling qualification,’ so that the law
to apply is article 294 and not article 299 of the Revised Penal Code. This is on the
theory that ‘robbery which is characterized by violence or intimidation against the
person is evidently graver than or-
311
VOL. 43, FEBRUARY 28, 1972 311
Napolis vs. Court of Appeals
dinary robbery committed by force upon things, because where violence or
intimidation against the person is present there is greater disturbance of the order
of society and the security of the individual.’ (U.S. vs. Turla, 38 Phil. 346; People
vs. Baluyot, 40 Phil. 89.) And this view is followed even where, as in the present
case, the penalty to be applied under article 294 is lighter than that which would
result from the application of article 299. x x x.”3
Upon mature deliberation, W e find ourselves unable to share the foregoing view.
Indeed, one who, by breaking a wall, enters, with a deadly weapon, an inhabited
house and steals therefrom valuable effects, without violence against or
intimidation upon persons, is punishable under Art. 299 of the Revised Penal Code
with reclusión temporal.4 Pursuant to the above view, adhered to in previous
decisions,5 if, aside from performing said acts, the thief lays hand upon any person,
without committing any of the crimes or inflicting any of, the injuries, mentioned
in subparagraphs (1) to (4) of Art. 294 of the same Code, the imposable penalty—
CRIMINAL LAW | PENALTIES
under paragraph (5) thereof—shall be much lighter.6 To our mind, this result and
the process of reasoning that has brought it about, defy logic and reason.
The argument to the effect that the violence against or intimidation of a person
supplies the “controlling qualification,” Is far from sufficient to justify said result.
We agree with, the proposition that robbery with “violence or intimidation against
the person is evidently graver than ordinary robbery committed by force upon
things,” but, precisely, for this reason, We cannot accept the conclusion deduced
therefrom in the cases above cited—reduction of the penalty for the latter offense
owing to the concurrence
_______________
3 People v. Sebastian, 85 Phil. 601, 603. See, also, Manahan v. People, 73 Phil.
691; U.S. v. Manansala, 9 Phil. 529, 530; U.S. v. De los Santos, 6 Phil. 411, 412.
4 From twelve (12) years and one (1) day to twenty (20) years of reclusión
temporal.
5 People v. Sebastian, 85 Phil. 601; Manahan v. People, 73 Phil. 691; People v.
Baluyot, 40 Phil. 89; U.S. v. Turla, 38 Phil. 346; U.S. v. Manansala, 9 Phil.
529; U.S. v. De los Santos, 6 Phil. 411.
6 From four (4) y ears, two (2) months and one (1) day of prisión correccional to
ten (10) years of prisón mayor.
312
312 SUPREME COURT REPORTS ANNOTATED
Napolis vs. Court of Appeals
of violence or intimidation which made it a more serious one. It is, to our mind,
more plausible to believe that Art. 294 applies only where robbery with violence
against or intimidation of person takes place without entering an inhabited house,
under the conditions set forth in Art. 299 of the Revised Penal Code.
We deem it more logical and reasonable to hold, as We do, when the elements
of both provisions are present, that the crime is a complex one, calling for the
imposition—as provided in Art. 48 of said Code—of the penalty for the most Serious
offense, in its maximum period, which, in the case at bar, is reclusión temporal in
its maximu m period. This penalty should, in turn, be imposed in its maximum
period—from nineteen (19) years, one (1) month and eleven (11) days to twenty (20)
years of reclusión temporal.—owing to the presence of the aggravating
circumstances of nighttime. In short, the doctrine adopted in U.S. v. De los
Santos7 and applied in U.S. v. Manansala,8 U.S. v. Turla,9 People v.
Baluyot,10 Manahan v. People,11 and People v. Sebastian,12 is hereby abandoned
and appellant herein should be sentenced to an indeterminate penalty ranging
from ten (10) years, and one (1) day of prisión mayor to nineteen (19) years, one (1)
month and eleven (11) days of reclusión temporal.
Thus modified as to the penalty, the decision of the Court of Appeals is hereby
affirmed in all other respects, with costs against herein appellant, Nicanor Napolis.
It is so ordered.
P a g e 64 | 279
 Reyes, ________________
J.B.L., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor
, JJ., concur. *EN BANC.
Makasiar, J., did not take part. 18
Decision affirmed with modification. 18 SUPREME COURT REPORTS ANNOTATED

_______________ People vs. Toling

7 Supra.
8 Supra.
9 Supra.
10 Supra.
11 Supra.
12 Supra.
313
VOL. 43, FEBRUARY 28, 1972 313
Yturralde vs. Court of Appeals
Notes.—In De Luna vs. Linatoc (74 Phil. 15), the Supreme Court held that it
will review factual findings of the Court of Appeals only when reasonable men
readily agree that the inference is manifestly mistaken, absurd or impossible.
There is also a ruling that in special civil actions for certiorari and prohibition
under Rule 67 (now Rule 65) of the Rules of Court, the theory of conclusiveness of
the findings of fact of the Court of Appeals does not apply (Medran v. C.A., 83 Phil.
164).
————
VOL. 62, JANUARY 17, 1975 17
People vs. Toling
No. L-27097. January 17, 1975.*
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO
TOLING y ROVERO and JOSE TOLING y ROVERO, defendants-
appellants.
Criminal law; Evidence; Witnesses; Where events transpired in rapid
succession in a train coach, it is not surprising that witnesses would not give
identical testimonies.—Where, as in this case, the events transpired in rapid
succession in the coach of the train and it was nighttime, it is not surprising that
Rayel and Aldea would not give identical testimonies. There is no doubt that Aldea
and Rayel witnessed some of the acts of the twins but they did not observe the same
events and their powers of perception and recollection are not the same. x x x On
the other hand, the defense failed to prove that persons, other than the twins, could
have inflicted the stab wounds. There is no doubt as to the corpus delicti. And there
can be no doubt that the twins, from their own admissions and their testimonies,
not to mention the testimonies of Rayel, Aldea, Mrs. Mapa and the CIS
Investigators, were the authors of the killings.
CRIMINAL LAW | PENALTIES
Same; Same; Same; Accused theory that they were held up by two or more
persons while on the coach of the train without this being noticed by other passengers
is incredible.—On the other hand, the twins’ theory of self-defense is highly
incredible. In that crowded coach No. 9, which was lighted, it was improbable that
two or more persons could have held up the twins without being readily perceived
by the other passengers. The twins would have made an outcry had there really
been an attempt to rob them. The injuries, which they sustained, could be
attributed to the blows which the other passengers inflicted on them to stop their
murderous rampage.
Same; Same; Same; Where there is no eyewitness-testimony as to the jumping
from the train of the four victims, same should preclude imputation of their death
on accused who went on a rampage inside the train.—No one testified that those
four victims jumped from the train. Had the necropsy reports been reinforced by
testimony showing that the proximate cause of their deaths was the violent and
murderous conduct of the twins, then the latter would be criminally responsible for
their deaths. x x x The absence of eyewitnesstestimony as to the jumping from the
train of the four victims already named precludes the imputation of criminal
responsibility to the appellants for the ghastly deaths of the said victims. The same
observation applies to the injuries suffered by the other victims x x x Unlike Mrs.
Mapa, the offended parties involved did not testify on the injuries inflicted on them.
Same; Under the criminal statutes, the presumption is that a person intends
the ordinary consequences of his voluntary act.—The rule is that “if a man creates
in another man’s mind an immediate sense of danger which causes such person to
try to escape, and in so doing he injures himself, the person who creates such a
state of mind is responsible for the injuries which result.”
Same; Murder; Conspiracy; Complex crime; Where eight killings and an
attempted killing were considered not constituting a complex crime.—The eight
killings and the attempted killing should be treated as separate crimes of murder
and attempted murder qualified by treachery. The unexpected, surprise assaults
perpetrate by the twins upon their co-passengers, who did not anticipate that the
twins would act like juramentados and who were unable to defend themselves (even
if some of them might have had weapons on their persons) was a mode of execution
that insured the consummation of the twins’ diabolical objective to butcher their
co-passengers. The conduct of the twins evinced conspiracy and community of
design. The eight killings and the attempted murder were perpetrated by means of
different acts. Hence, they cannot be regarded as constituting a complex crime
19
VOL. 62, JANUARY 17, 1975 19
People vs. Toling
P a g e 65 | 279
 under article 48 of the Revised Penal Code which refers to cases where “a
single act constitutes two or more grave felonies, or when an offense is a necessary
means for committing the other.”
Same; Murder; Penalty where no generic aggravating or mitigating
circumstances proved.—As no generic aggravating and mitigating circumstances
were proven in this case, the penalty for murder should be imposed in its medium
period or reclusion perpetua. The death penalty imposed by the trial court was not
warranted.
APPEAL from a decision of the Court of First Instance of Laguna. Arsenio
Nañawa, J.
The facts are stated in the opinion of the Court.
Solicitor General Felix V. Makasiar and Solicitor Dominador L. Quiroz for
plaintiff-appellee.
Santiago F. Alidio (Counsel de Oficio) for defendants-appellants.
AQUINO, J.:
Antonio Toling and Jose Toling, brothers, appealed from the decision of the Court
of First Instance of Laguna, finding them guilty of multiple murder and attempted
murder, sentencing them to death and ordering them to indemnify each set of heirs
of (1) Teresita B, Escanan, (2) Antonio B. Mabisa, (3) Isabelo S. Dando, (4) Elena
B. Erminio, (5) Modesta R. Brondial, (6) Isabel Felices and (7) Teodoro F. Bautista
in the sum of P6,000 and to pay Amanda Mapa the sum of P500 (Criminal Case No.
SC-966). The judgment of conviction was based on the following facts:
Antonio Toling and Jose Toling, twins, both married, are natives of Barrio
Nenita which is about eighteen (or nine) kilometers away from Mondragon,
Northern Samar. They are illiterate farmers tilling their own lands. They were
forty-eight years old in 1966. Antonio is one hour older than Jose. Being twins, they
look alike very much. However, Antonio has a distinguishing cut in his ear (44 tsn
Jan. 14, 1966).
Antonio’s daughter, Leonora, was working in Manila as a laundrywoman since
September, 1964. Jose’s three children one girl and two boys, had stayed in Manila
also since 1964.
Antonio decided to go to Manila after receiving a letter from Leonora telling
him that she would give him money. To have money for his expenses, Antonio killed
a pig and sold the meat
20
20 SUPREME COURT REPORTS ANNOTATED
People vs. Toling
to Jose’s wife for sixty pesos. Jose decided to go with Antonio in order to see his
children. He was able to raise eighty-five pesos for his expenses.
On January 6, 1965, with a bayong containing their pants and shirts, the twins
left Barrio Nenita and took a bus to Allen. From there, they took a launch to
Matnog, Sorsogon. From Matnog, they went to Daraga, Albay on board an Alatco
CRIMINAL LAW | PENALTIES
bus, and from Daraga, they rode on the train, arriving at the Paco railroad station
in Manila at about seven o’clock in the morning of January 8th. It was their first
trip to the big city.
At the Paco station, the twins took a jeepney which brought them to Tondo. By
means of a letter which Aniano Espenola, a labor-recruiter, had given them, they
were able to locate an employment agency where they learned the address of the
Eng Heng Glassware. Antonio’s daughter was working in that store. Accompanied
by Juan, an employee of the agency, they proceeded to her employer’s
establishment. Leonora gave her father fifty pesos. Sencio Rubis, Antonio’s
grandson, gave him thirty pesos. Antonio placed the eighty pesos in the right pocket
of his pants. It was then noontime.
Jose was not able to find any of his children in the city. The twins returned to
the agency where they ate their lunch at Juan’s expense. From the agency, Juan
took the twins to the Tutuban railroad station that same day, January 8th, for their
homeward trip.
After buying their tickets, they boarded the night Bicol express train at about
five o’clock in the afternoon. The train left at six o’clock that evening.
The twins were in coach No. 9 which was the third from the rear of the dining
car. The coach had one row of two-passenger seats and another row of three-
passenger seats. Each seat faced an opposite seat. An aisle separated the two rows.
The brothers were seated side by side on the fourth three-passenger seat from the
rear, facing the back door. Jose was seated between Antonio, who was near the
window, and a three-year old boy. Beside the boy was a woman breast-feeding her
baby who was near the aisle. That woman was Corazon Bernal. There were more
than one hundred twenty passengers in the coach. Some passengers were standing
on the aisle.
Sitting on the third seat and facing the brothers were two men and an old
woman who was sleeping with her head resting on the back of the seat (Exh. 2). On
the two-passenger seat
21
VOL. 62, JANUARY 17, 1975 21
People vs. Toling
across the aisle in line with the seat where the brothers were sitting, there were
seated a fat woman, who was near the window, and one Cipriano Reganet who was
on her left. On the opposite seat were seated a woman, her daughter and Amanda
Mapa with an eight-month old baby. They were in front of Reganet.
Two chico vendors entered the coach when the train stopped at Cabuyao,
Laguna. The brothers bought some chicos which they put aside. The vendors
alighted when the train started moving. It was around eight o’clock in the evening.
Not long after the train had resumed its regular speed, Antonio stood up and
with a pair of scissors (Exh. B) stabbed the man sitting directly in front of him. The
victim stood up but soon collapsed on his seat.
For his part, Jose stabbed with a knife (Exh. A) the sleeping old woman who
was seated opposite him. She was not able to get up anymore.1
Upon seeing what was happening, Amanda Mapa, with her baby, attempted to
leave her seat, but before she could escape Jose stabbed her, hitting her on her right
P a g e 66 | 279
hand with which she was supporting her child (Exh. D-2). The blade entered the
dorsal side and passed through the palm. Fortunately, the child was not injured.
Most of the passengers scurried away for
_______________
1That
initial stabbing was described by Corazon BernalAstrolavio in her
statement dated January 9, 1965 in this manner (page 16 of the Record):
“4. T: May nasaksihan ba kayong hindi pangkaraniwang pangyayari na naganap nang
gabing iyon at kung mayroon maaari ba ninyong maisalaysay sa maikli ngunit
maliwanag na pananalita?
“S: Mayruon po. Nakaupo ako nuon sa bandang hulihan nang tren. Nagpapasuso ako
nuon nang aking anak nang biglang nagkagulo. Iyong katabi kong lalaki na may
katandaan na ay biglang sinaksak iyong kaharap kong babae sa upuan. Nabuwal
iyong kanyang sinaksak, at ako naman ay nagtatakbo na dala ko iyong dalawa kong
anak. Sumiksik kami doon sa may kubeta nang tren na nang mangyari iyon ay
lumalakad. Hindi ko alam na iyong aking kanan sintido ay nagdurugo. Nang tahimik
na ay dinala kami sa ospital sa Calamba at doon ay ginamot ako roon.
“5. T: Sinabi ninyo na nang biglang magkagulo samantalang lumalakad ang tren ay
iyong katabi ninyong lalaki na may katandaan na ay biglang sinaksak iyong kaharap
ninyong babae sa upuan, nakita ba ninyo kung ano ang ipinanaksak nang lalaking
ito?
“S: Hindi ko na po napansin dahil sa aking takot.”
22
22 SUPREME COURT REPORTS ANNOTATED
People vs. Toling
safety but the twins, who had run amuck, stabbed everyone whom they
encountered inside the coach.2
Among the passengers in the third coach was Constabulary Sergeant Vicente
Z. Rayel, a train escort who, on that occasion, was not on duty. He was taking his
wife and children to Calauag, Quezon. He was going to the dining ear to drink coffee
when someone informed him that there was a stabbing inside the coach where he
had come from. He immediately proceeded to return to coach No. 9. Upon reaching
coach 8, he saw a dead man sprawled on the floor near the toilet. At a distance of
around nine meters, he saw a man on the platform separating coaches Nos. 8 and
9, holding a knife between the thumb and index finger of his right hand, with its
blade pointed outward. He shouted to the man that he (Rayel) was a
Constabularyman and a person in authority and Rayel ordered him to lay down his
knife (Exh. A) upon the count of three, or he would be shot.
_______________
2Mrs. Mapa’s statement (Exh. E) reads:
“4. T: Sino po ang sumaksak sa inyo?
S: Iyon pong lalaking mataas na payat na bisaya. Hindi ko po kilala pero kung makikita
ko ay makikilala ko. Ito pong sumaksak sa akin na ito ay dinala rin sa ospital sa
Calamba, Laguna. Nauna po lamang ako at nakita kong siya ang isinunod na may
saksak din.
5. T: Bakit naman ninyo namukhaan itong sumaksak sa inyong ito?
S: Kahelera po namin iyan sa upuan.
6. T: Maaari po ba ninyong isalaysay sa maikli ngunit maliwanag na pananalita. ang
buong pangyayaring inyong nasaksihan?
S: Opo. Nagpapasuso ako nuon nang aking anak. nang walang ano-ano ay nakita ko na
lamang iyong nakasaksak sa akin na biglang tumayo sa kanyang kinauupuan at
biglang sinaksak iyong kaharap niyang sa upuan na babae na
natutulog. Itong katabi nang nanaksak na ito ay tumayo rin at nanaksak din nang
nanaksak at ang lahat nang makitang tao ay hinahabol at sinasaksak. Bata, matanda
ay sinasaksak nang dalawang ito at madaanan. Nang bigla kong tayo ay natamaan
iyong aking kanang kamay nang kabig niya nang saksak. Nagtuloy ako sa kubeta sa
tren at doon ako sumiksik. Nang payapa naang lahat ay dinala ako sa Calamba sa
ospital doon, at ako’y ginamot nang pangunang lunas.
7. T: Itong katabi na lalaking sinasabi ninyong nanaksak din ay kung makita ninyong
muli ay makikilala pa ninyo?
S: Makikilala ko rin po. Magkahawig po sila nang nakasaksak sa akin.”
The statement of Cipriano Reganet who was wounded (Exh. D-4), in
23
VOL. 62, JANUARY 17, 1975 23
People vs. Toling
Instead of obeying, the man changed his hold on the knife by clutching it between
his palm and little finger (with the blade pointed inward) and, in a suicidal impulse,
stabbed himself on his left breast. He slowly sank to the floor and was prostrate
thereon. Near the platform where he had fallen, Rayel saw another man holding a
pair of scissors (Exh. B). He retreated to the steps near the platform when he saw
Rayel armed with a pistol.
Rayel learned from his wife that the man sitting opposite her was stabbed to
death.
_______________
a way corroborates Mrs. Mapa’s statement. Reganet’s statement reads in part
as follows (Exh. F):

CRIMINAL LAW | PENALTIES P a g e 67 | 279

“3. T: Maaari po ba ninyong masabi kung bakit kayo naririto ngayon sa PNR Hospital I-3). Antonio was not wounded. Those victims were prostrate on the seats of the
coach and on the aisle.
dito sa Caloocan City? Aldea shouted at Antonio to surrender but the latter made a thrust at him with
S: Dahil po sa mga saksak na tinamo ko nang magkaroon nang gulo sa loob nang tren the scissors. When Antonio was about to stab another person, Aldea stood on a seat
kagabing humigit kumulang sa mga alas nueve (9:00 P.M.) petcha 8 nitong Enero and repeatedly struck Antonio on the head with the butt of his pistol, knocking him
down. Aldea then jumped and stepped on Antonio’s buttocks and wrested the
1965. scissors away from him. Antonio offered resistance despite the blows administered
4. T: Sino po ang sumaksak sa inyo kung inyong nakikilala? to him.
S: Hindi ko po alam ang pangalan pero mamumukhaan ko kung ihaharap sa akin. Ang When the train arrived at the Calamba station, four Constabulary soldiers
escorted the twins from the train and turned them over to the custody of the
sumaksak po sa akin ay iyong kasama ko sa ambulancia na nagdala sa amin dito sa Calamba police. Sergeant Rayel took down their names. The bloodstained
ospital na ito.
5. T: Bakit naman ninyo natiyak na ang sumaksak sa inyo ay iyong kasama ninyo sa ______________
ambulancia na nagdala sa inyo sa ospital na ito?
nang tren ay iyong sumaksak sa akin, na nakasandal at nang makita ako ay
S: Malapit po lamang ang kanyang inuupuan sa aking inuupuan sa loob nang tren kaya
tinanganan iyong kanyang panaksak at tinangka akong habulin. Tumakbo ako at
namukhaan ko siya.
tumalon sa lupa. Sa pagtalon kong iyon ay napinsala ang aking kaliwang balikat.
6. T: Ilan beses kayong sinaksak nang taong ito?
12. T: Ano po ang ipinanaksak sa inyo?
S: Dalawang beses po.
S: Para pong punyal na ang haba ay kumulang humigit sa isang dangkal”.
7. T: Saan-saan panig nang katawan kayo nagtamo nang saksak?
Mrs. Brigida Sarmiento-Palma, who was also wounded (Exh. D-3) executed a
S: Sa aking noo at sa kanang kamay nang sangahin ko ang kanyang pangalawang
statement which reads in part as follows (page 20, Record):
saksak.
“4. T: Maaari po ba ninyong maisalaysay sa maikli ngunit maliwanag na pananalita ang
8. T: Bakit po naman kayo sinaksak nang taong ito?
buong pangyayari?
S: Hindi ko po alam. Primero nanaksak siya sa kanyang kaharap sa upuan at saksak
S: Opo. Nakaupo po ako nuon kaharap papuntang Bicol. Walang ano-ano ay bigla na
nang saksak sa mga taong kanyang makita.
lamang nakita ko na may sinaksak at pagkatapos nakita ko na lahat nang makita
9. T: Ilan ang nakita ninyong nananaksak?
babae o lalaki at sinasaksak. Nang ako’y tumayo para tumakbo ay nilapitan ako at
S: Dalawa pong magkatabi na magkahawig ang mukha.
ako naman ang sinaksak. Sumigaw ako at humingi nang saklolo at nakiusap sa isang
10. T: Nang mangyari po ba ito ay tumatakbo ang tren?
tao na tagpan nang tualya iyong tinamo kong saksak sa kaliwang puson na tumama
S: Tumatakbo po.
sa buto. Makalipas ang ilang sandali ay dinala na ako sa ospital.
10. T: Papaano kayo nakaligtas?
5. T: Nakikilala ba ninyo iyong sumaksak sa inyo?
S: Tumakbo po ako at kumabit sa rampa at nang medyo tahimik na balak kong
S: Kilala ko po sa mukha at kasama ko pa kahapon nang dalhin ako sa ospital na ito.
magbalik sa loob nang tren. Nakita ko na maraming sugatan at sa wari ko ay patay
6. T: Ilan po itong nakita ninyong nanaksak?
na. Sa mga nakita ko sa loob
24 S: Dalawa po sila na magkahawig ang mukha.”
24 SUPREME COURT REPORTS ANNOTATED 25
VOL. 62, JANUARY 17, 1975 25
People vs. Toling
Constabulary Sergeant Vicente Aldea was also in the train. He was in the dining People vs. Toling
car when he received the information that there were killings in the third coach. scissors and knife were turned over to the Constabulary Criminal Investigation
He immediately went there and, while at the rear of the coach, he met Mrs. Mapa Service (CIS).
who was wounded. He saw Antonio stabbing with his scissors two women and a Some of the victims were found dead in the coach while others were picked up
small girl and a woman who was later identified as Teresita B. Escanan (Exh. I to along the railroad tracks between Cabuyao and Calamba. Those who were still

CRIMINAL LAW | PENALTIES P a g e 68 | 279

alive were brought to different hospitals for first-aid treatment. The dead
numbering twelve in all were brought to Funeraria Quiogue, the official morgue of
the National Bureau of Investigation (NBI) in Manila, where their cadavers were
autopsied (Exh. C to C-11). A Constabulary photographer took some pictures of the
victims (Exh. G to I-2, J-1 and J-2).
Of the twelve persons who perished, eight, whose bodies were found in the
train, died from stab wounds, namely:
1. (1)Isabel Felices, 60, housewife, Ginlajon, Sorsogon.
2. (2)Antonio B. Mabisa, 28, married, laborer, Guinayangan, Quezon.
3. (3)Isabelo S. Dando, 45, married, Paracale, Camarines Norte.
4. (4)Susana C. Hernandez, 46, married, housekeeper, Jose Panganiban,
Camarines Norte.
5. (5)Teodoro F. Bautista, 72, married, Nawasa employee, San Juan, Rizal.
6. (6)Modesta R. Brondial, 58, married, housekeeper, Legaspi City.
7. (7)Elena B. Erminio, 10, student, 12 Liberty Avenue, Cubao, Quezon City
and
8. (8)Teresita B. Escanan, 25, housemaid, 66 Menlo Street, Pasay City (Exh.
C to C-3, C-7, C-8, C-9, C-11, L to L-2, N to N-2, O to O-2, P to P-2, Q to
Q-2, R to R-2 and T to T-2).
Four dead persons were found near the railroad tracks. Apparently, they jumped
from the moving train to avoid being killed. They were:
1. (1)Timoteo IL Dimaano, 53, married, carpenter, Miguelin, Sampaloc,
Manila.
2. (2)Miguel C. Oriarte, 45, married, Dalagan, Lopez, Quezon.
3. (3)Salvador A. Maqueda, 52, married, farmer, Lopez, Quezon and
4. (4)Shirley A. Valenciano, 27, married, housekeeper, 657-D Jorge Street,
Pasay City (Exh. C-4, C-5, C-6, C-10, J, J-1, J-2, K to K-2, M to M-3 and
S to S-2).
Among the injured were Lucila Pantoja, Baby X, Mrs. X, Mrs. Amanda Mapa-
Dizon, Brigida Sarmiento-Palma, Cipriano
26
26 SUPREME COURT REPORTS ANNOTATED
People vs. Toling
Reganet and Corazon Bernal-Astrolavio (Exh. D to D-5). Mrs. Astrolavio
supposedly died later (43 tsn January 14, 1966).
Mrs. Mapa declared that because of the stab wound inflicted upon her right
hand by Jose Toling, she was first brought to the Calamba Emergency Hospital.
Later, she was transferred to the hospital of the Philippine National Railways at
Caloocan City where she was confined for thirteen days free of charge. As a result
of her injury, she was not able to engage in her occupation of selling fish for one
month, thereby losing an expected earning of one hundred fifty pesos. When she
CRIMINAL LAW | PENALTIES
ran for safety with her child, she lost clothing materials valued at three hundred
pesos aside from two hundred pesos cash in a paper bag which was lost.
The case was investigated by the Criminal Investigation Service of the Second
Constabulary Zone headquarters at Camp Vicente Lim, Canlubang, Laguna. On
January 9, 1965 Constabulary investigators took down the statements of Mrs.
Mapa-Dizon, Cipriano Reganet, Corazon Bernal, Brigida de Sarmiento and
Sergeant Aldea. On that date, the statements of the Toling brothers were taken at
the North General Hospital. Sergeant Rayel also gave a statement.
Antonio Toling told the investigators that while in the train he was stabbed by
a person “from the station” who wanted to get his money. He retaliated by stabbing
his assailant. He said that he stabbed somebody “who might have died and others
that might not”. He clarified that in the train four persons were asking money from
him. He stabbed one of them. “It was a holdup”.
He revealed that after stabbing the person who wanted to rob him, he stabbed
other persons because, inasmuch as he “was already bound to die”, he wanted “to
kill everybody” (Exh. X or 8, 49 tsn Sept. 3, 1965).
Jose Toling, in his statement, said that he was wounded because he was
stabbed by a person “from Camarines” who was taking his money. He retaliated by
stabbing his assailant with the scissors. He said that he stabbed two persons who
were demanding money from him and who were armed with knives and iron bars.
When Jose Toling was informed that several persons died due to the stabbing,
he commented that everybody was trying “to kill each other” (Exh. 1-A).
27
VOL. 62, JANUARY 17, 1975 27
People vs. Toling
According to Jose Toling, two persons grabbed the scissors in his pocket and
stabbed him in the back with the scissors and then escaped. Antonio allegedly
pulled out the scissors from his back, gave them to him and told him to avenge
himself with the scissors.
On January 20, 1965 a Constabulary sergeant filed against the Toling brothers
in the municipal court of Cabuyao, Laguna a criminal complaint for multiple
murder and multiple frustrated murder. Through counsel, the accused waived the
second stage of the preliminary investigation. The case was elevated to the Court
of First Instance of Laguna where the Provincial Fiscal on March 10, 1965 filed
against the Toling brothers an information for multiple murder (nine victims),
multiple frustrated murder (six victims) and triple homicide (as to three persons
who died after jumping from the running train to avoid being stabbed).
At the arraignment, the accused, assisted by their counsel de oficio, pleaded not
guilty. After trial, Judge Arsenio Nañawa rendered the judgment of conviction
already mentioned. The Toling brothers appealed.
In this appeal, appellants’ counsel de oficio assails the credibility of the
prosecution witnesses, argues that the appellants acted in self-defense and
contends, in the alternative, that their criminal liability was only for two homicides
and for physical injuries.
According to the evidence for the defense (as distinguished from appellants’
statements, Exhibits 1 and 8), when the Toling twins were at the Tutuban Railroad
P a g e 69 | 279
Station in the afternoon of January 8, 1965, Antonio went to the ticket counter to
buy tickets for himself and Jose. To pay for the tickets, he took out his money from
the right pocket of his pants and later put back the remainder in the same pocket.
The two brothers noticed that four men at some distance from them were allegedly
observing them, whispering among themselves and making signs. The twins
suspected that the four men harbored evil intentions towards them.
When the twins boarded the train, the four men followed them. They were
facing the twins. They were talking in a low voice. The twins sat on a two-passenger
seat facing the front door of the coach, the window being on the right of Antonio
and Jose being to his left. Two of the four men, whom they were suspecting of
having evil intentions towards them, sat on the
28
28 SUPREME COURT REPORTS ANNOTATED
People vs. Toling
seat facing them, while the other two seated themselves behind them. Some old
women were near them. When the train was already running, the man sitting near
the aisle allegedly stood up, approached Antonio and pointed a balisong knife at
his throat while the other man who was sitting near the window and who was
holding also a balisong knife attempted to pick Antonio s right pocket, threatening
him with death if he would not hand over the money. Antonio answered that he
would give only one-half of his money provided the man would not hurt him, adding
that his (Antonio’s) place was still very far.
When Antonio felt some pain in his throat, he suddenly drew out his hunting
knife or small bolo (eight inches long including the handle) from the back pocket of
his pants and stabbed the man with it, causing him to fall to the floor with
his balisong. He also stabbed the man who was picking his pocket. Antonio
identified the two men whom he had stabbed as those shown in the photographs of
Antonio B. Mabisa (Exh. L-1 and L-2 or 5-A and 5-B) and Isabelo S. Dando (Exh.
N-1 and N-2 or 7-A and 7-B). While Antonio was stabbing the second man, another
person from behind allegedly stabbed him on the forehead, causing him to lose
consciousness and to fall on the floor (Antonio has two scars on his forehead and a
scar on his chest and left forearm, 85, 87 tsn). He regained consciousness when two
Constabulary soldiers raised him. His money was gone.
Seeing his brother in a serious condition, Jose stabbed with the scissors the
man who had wounded his brother. Jose hit the man in the abdomen. Jose was
stabbed in the back by somebody. Jose stabbed also that assailant in the middle
part of the abdomen, inflicting a deep wound.
However, Jose did not see what happened to the two men whom he had stabbed
because he was already weak. He fell down and became unconscious. He identified
Exhibit A as the knife used by Antonio and Exhibit B as the scissors which he
himself had used. He recovered consciousness when a Constabulary soldier brought
him out of the train.
The brothers presented Doctor Leonardo del Rosario, a physician of the North
General Hospital who treated them during the early hours of January 9, 1965 and
who testified that he found the following injuries on Antonio Toling:
CRIMINAL LAW | PENALTIES
“Wound, incised, 1-1/4 inches (sutured), frontal, right; 3-1/2 inches each, mid-
frontal (wound on the forehead) and
29
VOL. 62, JANUARY 17, 1975 29
People vs. Toling
“Wound, stabbed, 3/4 inch, 1 inch medial to anterior axillary line level of 3rd ICS,
right, penetrating thoracic cavity” (chest wound (Exh. 11).
and on Jose Toling a stab wound, one inch long on the paravertebral level of the
fifth rib on the left, penetrating the thoracic cavity (Exh. 10). The wound was on
the spinal column in line with the armpit or “about one inch from the midline to
the left” (113 tsn). The twins were discharged from the hospital on January 17th.
The trial court, in its endeavor to ascertain the motive for the twins’
rampageous behavior, which resulted in the macabre deaths of several innocent
persons, made the following observations:
“What could be the reason or motive that actuated the accused to run amuck? It
appears that the accused travelled long over land and sea spending their hard-
earned money and suffering privations, even to the extent of foregoing their
breakfast, only to receive as recompense with respect to Antonio the meager sum
of P50 from his daughter and P30 from his grandson and with respect to Jose to
receive nothing at all from any of his three children whom he could not locate in
Manila.
“It also appears that the accused, who are twins, are queerly alike, a fact which
could easily invite some people to stare or gaze at them and wonder at their very
close resemblance. Like some persons who easily get angry when stared at,
however, the accused, when stared at by the persons in front of them, immediately
suspected them as having evil intention towards them (accused).
“To the mind of the Court, therefore, it is despondency on the part of the accused
coupled with their unfounded suspicion of evil intention on the part of those who
happened to stare at them that broke the limit of their self-control and actuated
them to run amuck.”
We surmise that to the captive spectators in coach No. 9 the spectacle of middle-
aged rustic twins, whom, in the limited space of the coach, their co-passengers had
no choice but to notice and gaze at, was a novelty. Through some telepathic or extra-
sensory perception the twins must have sensed that their co-passengers were
talking about them in whispers and making depreciatory remarks or jokes about
their humble persons. In their parochial minds, they might have entertained the
notion or suspicion that their male companions, taking advantage of their
ignorance and naivete, might victimize them by stealing their little money. Hence,
they became hostile to their co-
30
30 SUPREME COURT REPORTS ANNOTATED
People vs. Toling
passengers. Their pent-up hostility erupted into violence and murderous fury.
A painstaking examination of the evidence leads to the conclusion that the trial
court and the prosecution witnesses confounded one twin for the other. Such a
confusion was unavoidable because the twins, according to a Constabulary
P a g e 70 | 279
investigator, are “very identical”. Thus, on the witness stand CIS Sergeants Alfredo
C. Orbase and Liberato Tamundong, after pointing to the twins, refused to take the
risk of identifying who was Antonio and who was Jose. They confessed that they
might be mistaken in making such a specific identification (28 tsn September 3,
1965; 32 tsn November 5, 1965).
In our opinion, to ascertain who is Antonio and who is Jose, the reliable guides
would be their sworn statements (Exh. 1 and 8), executed one day after the killing,
their own testimonies and the medical certificates (Exh. 10 and 11). Those parts of
the evidence reveal that the one who was armed with the knife was Antonio and
the one who was armed with the scissors was Jose. The prosecution witnesses and
the trial court assumed that Antonio was armed with the scissors (Exh. B) and Jose
was armed with the knife (Exh. A). That assumption is erroneous.
In his statement and testimony, Antonio declared that he was armed with a
knife, while Jose declared that he was armed with the scissors which Antonio had
purchased at the Tutuban station, before he boarded the train and which he gave
to Jose because the latter is a barber whose old pair of scissors was already rusty.
As thus clarified, the person whom Sergeant Rayel espied as having attempted to
commit suicide on the platform of the train by stabbing himself on the chest would
be Antonio (not Jose). That conclusion is confirmed by the medical certificate,
Exhibit 11, wherein it is attested that Antonio had a wound in the chest. And the
person whom Sergeant Aldea subdued after the former had stabbed several persons
with a pair of scissors (not with a knife) was Jose and not Antonio. That fact is
contained in his statement of January 9, 1965 (p. 9, Record).
The mistake of the prosecution witnesses in taking Antonio for Jose and vice-
versa does not detract from their credibility. The controlling fact is that those
witnesses confirmed the admission of the twins that they stabbed several
passengers.
31
VOL. 62, JANUARY 17, 1975 31
People vs. Toling
Appellants’ counsel based his arguments on the summaries of the evidence found
in the trial court’s decision. He argues that the testimonies of Sergeants Rayel and
Aldea are contradictory but he does not particularize on the supposed
contradictions.
The testimonies of the two witnesses do not cancel each other. The main point
of Rayel’s testimony is that he saw one of the twins stabbing himself in the chest
and apparently trying to commit suicide. Aldea’s testimony is that he knocked down
the other twin, disabled him and prevented him from committing other killings.
It may be admitted that Rayel’s testimony that Aldea took the knife of Jose
Toling was not corroborated by Aldea. Neither did Aldea testify that Antonio was
near Jose on the platform of the train. Those discrepancies do not render Rayel and
Aldea unworthy of belief. They signify that Aldea and Rayel did not give rehearsed
testimonies or did not compare notes.
Where, as in this case, the events transpired in rapid succession in the coach of
the train and it was nighttime, it is not surprising that Rayel and Aldea would not
give identical testimonies (See 6 Moran’s Comments on the Rules of Court, 1970
CRIMINAL LAW | PENALTIES
Ed. 139-140: People vs. Resayaga, L-23234, December 26, 1963, 54 SCRA 350).
There is no doubt that Aldea and Rayel witnessed some of the acts of the twins but
they did not observe the same events and their powers of perception and
recollection are not the same.
Appellants’ counsel assails the testimony of Mrs. Mapa. He contends that no
one corroborated her testimony that one of the twins stabbed a man and a sleeping
woman sitting on the seat opposite the seat occupied by the twins. The truth is that
Mrs. Mapa’s testimony was confirmed by the necropsy reports and by the twins
themselves who admitted that they stabbed some persons.
On the other hand, the defense failed to prove that persons, other than the
twins, could have inflicted the stab wounds. There is no doubt as to the corpus
delicti. And there can be no doubt that the twins, from their own admissions (Exh.
1 and 8) and their testimonies, not to mention the testimonies of Rayel, Aldea, Mrs.
Mapa and the CIS investigators, were the authors of the killings.
Apparently, because there was no doubt on the twins’ culpability, since they
were caught in flagrante delicto, the CIS
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32 SUPREME COURT REPORTS ANNOTATED
People vs. Toling
investigators did not bother to get the statements of the other passengers in Coach
No. 9. It is probable that no one actually saw the acts of the twins from beginning
to end because everyone in Coach No. 9 was trying to leave it in order to save his
life. The ensuing commotion and confusion prevented the passengers from having
a full personal knowledge of how the twins consummated all the killings.
On the other hand, the twins’ theory of self-defense is highly incredible. In that
crowded coach No. 9, which was lighted, it was improbable that two or more persons
could have held up the twins without being readily perceived by the other
passengers. The twins would have made an outcry had there really been an attempt
to rob them. The injuries, which they sustained, could be attributed to the blows
which the other passengers inflicted on them to stop their murderous rampage.
Appellants’ view is that they should be held liable only for two homicides,
because they admittedly killed Antonio B. Mabisa and Isabelo S. Dando, and for
physical injuries because they did not deny that Jose Toling stabbed Mrs. Mapa.
We have to reject that view.
Confronted as we are with the grave task of passing judgment on the aberrant
behavior of two yokels from the Samar hinterland, who reached manhood without
coming into contact with the mainstream of civilization in urban areas, we
exercised utmost care and solicitude in reviewing the evidence. We are convinced
that the record conclusively establishes appellants’ responsibility for the eight
killings.
To the seven dead persons whose heirs should be indemnified, according to the
trial court, because they died due to stab wounds, should be added the name of
Susana C. Hernandez (Exh. P, P-1 and P-2). The omission of her name in the trial
court’s judgment was probably due to inadvertence.
According to the necropsy reports, four persons, namely, Shirley A. Valenciano,
Salvador A. Maqueda, Miguel C. Oriarte and Timoteo U. Dimaano, died due to
P a g e 71 | 279
multiple traumatic injuries consisting of abrasions, contusions, lacerations and
fractures on the head, body and extremities (Exh. J to J-2 K to K-2, M to M-2 and
S to S-2).
The conjecture is that they jumped from the moving train to avoid being killed
but in so doing they met their untimely and horrible deaths. The trial court did not
adjudge them as victims whose heirs should be indemnified. As to three of them,
the
33
VOL. 62, JANUARY 17, 1975 33
People vs. Toling
information charges that the accused committed homicide. The trial court
dismissed that charge for lack of evidence.
No one testified that those four victims jumped from the train. Had the
necropsy reports been reinforced by testimony showing that the proximate cause of
their deaths was the violent and murderous conduct of the twins, then the latter
would be criminally responsible for their deaths.
Article 4 of the Revised Penal Code provides that “criminal liability shall be
incurred by any person committing a felony (delito) although the wrongful act done
be different from that which he intended”. The presumption is that “a person
intends the ordinary consequences of his voluntary act” (Sec. 5[c], Rule 131, Rules
of Court).
The rule is that “if a man creates in another man’s mind an immediate sense of
danger which causes such person to try to escape, and in so doing he injures
himself, the person who creates such a state of mind is responsible for the injuries
which result” (Reg. vs. Halliday, 61 L. T. Rep. [N.S.] 701, cited in U.S. vs. Valdez, 41
Phil. 497, 500).
Following that rule, it was held that “if a person against whom a criminal
assault is directed reasonably believes himself to be in danger of death or great
bodily harm and in order to escape jumps into the water, impelled by the instinct
of self-preservation, the assailant is responsible for homicide in case death results
by drowning” (Syllabus, U.S. vs. Valdez, supra. See People vs. Buhay, 79 Phil. 371).
The absence of eyewitness-testimony as to the jumping from the train of the
four victims already named precludes the imputation of criminal responsibility to
the appellants for the ghastly deaths of the said victims.
The same observation applies to the injuries suffered by the other victims. The
charge of multiple frustrated murder based on the injuries suffered by Cipriano
Pantoja, Dinna Nosal, Corazon Bernal and Brigida Sarmiento (Exh. D, D-3 to D-5)
was dismissed by the trial court for lack of evidence. Unlike Mrs. Mapa, the
offended parties involved did not testify on the injuries inflicted on them.
The eight killings and the attempted killing should be treated as separate
crimes of murder and attempted murder qualified by treachery (alevosia) (Art.
14[16], Revised Penal Code). The unexpected, surprise assaults perpetrated by the
twins upon their co-passengers, who did not anticipate that the twins
34
34 SUPREME COURT REPORTS ANNOTATED
People vs. Toling
CRIMINAL LAW | PENALTIES
would act like juramentados and who were unable to defend themselves (even if
some of them might have had weapons on their persons) was a mode of execution
that insured the consummation of the twins’ diabolical objective to butcher their
co-passengers. The conduct of the twins evinced conspiracy and community of
design.
The eight killings and the attempted murder were perpetrated by means of
different acts. Hence, they cannot be regarded as constituting a complex crime
under article 48 of the Revised Penal Code which refers to cases where “a single act
constitutes two or more grave felonies, or when an offense is a necessary means for
committing the other”.
As noted by Cuello Calon, the so-called “concurso formal o ideal de delitos
reviste dos formas: (a) cuando un solo hecho constituye dos o mas delitos (el llamado
delito compuesto); (b) cuando uno de ellos sea medio necesario para cometer otro (el
llamado delito complejo). (1 Derecho Penal, 12th Ed. 650).
On the other hand, “en al concurso real de delitos”, the rule, when there is
“acumulación material de las penas”, is that “si son varios los resultados, si son
varias las acciones, está conforme con la lógica y con la justicia que el agente soporte
la carga de cada uno de los delitos” (Ibid, p. 652, People vs. Mori, L-23511, January
31, 1974, 55 SCRA 382, 403).
The twins are liable for eight (8) murders and one attempted murder.
(See People vs. Salazar, 105 Phil. 1058 where the accused Moro, who ran amuck,
killed sixteen persons and wounded others, was convicted of sixteen separate
murders, one frustrated murder and two attempted murders; People vs.
Mortero, 108 Phil. 31, the Panampunan massacre case, where six defendants were
convicted of fourteen separate murders; People vs. Remollino, 109 Phil. 607, where
a person who fired successively at six victims was convicted of six separate
homicides; U. S. Beecham, 15 Phil. 272, involving four murders; People vs. Macaso,
85 Phil. 819, 828, involving eleven murders; U.S. vs. Jamad, 37 Phil. 305; U.S. vs.
Balaba, 37 Phil. 260, 271. Contra: People vs. Cabrera, 43 Phil 82, 102-103; People
vs. Floresca, 99 Phil. 1044; People vs. Sakam, 61 Phil. 27; People vs. Lawas, 97
Phil. 975; People vs. Manantan, 94 Phil. 831; People vs. Umali, 96 Phil. 185; People
vs. Cu Unjieng, 61 Phil. 236; People vs. Peñas, 66 Phil. 682; People vs. De Leon, 49
Phil. 437, where the crimes committed by means of separate acts were held to be
complex on the theory that they were the
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VOL. 62, JANUARY 17, 1975 35
People vs. Toling
product of a single criminal impulse or intent).
As no generic mitigating and aggravating circumstances were proven in this
case, the penalty for murder should be imposed in its medium period or reclusion
perpetua (Arts. 64[1] and 248, Revised Penal Code. The death penalty imposed by
the trial court was not warranted.
A separate penalty for attempted murder should be imposed on the appellants,
No modifying circumstances can be appreciated in the attempted murder case.
WHEREFORE, the trial court’s judgment is modified by setting aside the death
sentence. Defendants-appellants Antonio Toling and Jose Toling are found guilty,
P a g e 72 | 279
as coprincipals, of eight (8) separate murders and one attempted murder. Each one
of them is sentenced to eight (8) reclusion perpetuas for the eight murders and to
an indeterminate penalty of one (I) year of prision correccional as minimum to six
(6) years and one (1) day of prision mayor as maximum for the attempted murder
and to pay solidarily an indemnity of P12,000 to each set of heirs of the seven
victims named in the dispositive part of the trial court’s decision and of the eighth
victim, Susana C. Hernandez, or a total indemnity of P96,000, and an indemnity of
P500 to Amanda Mapa. In the service of the penalties, the forty-year limit fixed in
the penultimate paragraph of article 70 of the Revised Penal Code should be
observed. Costs against the appellants.
SO ORDERED.
Makalintal,
C.J., Castro, Fernando, Teehankee, Barredo, Esguerra, Fernandez and Muñoz
Palma, JJ., concur.
Antonio, J., concurs in a separate opinion.
Makasiar, J., did not take part.
Judgment modified.
Notes.—(a) Complex crimes.—An accused cannot be convicted of the complex
crime of murder with double frustrated murder where the grave offenses committed
by him were not caused by one single act. (People vs. Bernal, 28 SCRA 25). Thus,
where the killing is not shown to have been committed by a single discharge of
firearms, the crime cannot be considered complex (People vs. Tilos, 30 SCRA 734).
A complex crime, therefore, will arise where one shot from a gun results in the
death of two or more persons, or where one stabbed another and the weapon pierced
the latter’s body and
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36 SUPREME COURT REPORTS ANNOTATED
People vs. Toling
wounded another, or where a person plants a bomb in an airplane and the bomb
explodes, with the result that a number of persons are killed. (People vs. Pineda, 20
SCRA 748).
(b) Conspiracy.—Conspiracy arises from the very instant the plotters agree to
commit the felony and pursue it (People vs. Indic, 10 SCRA 130). Conspiracy to
exist does not require a definite agreement for an appreciable period prior to the
occurrence or commission of the offense; in law, conspiracy exists, if, at the time of
the commission of the offense, the accused had the same criminal purpose and were
united in its execution (People vs. Cadag, 2 SCRA 388). Consequently, conspiracy
need not be established by direct proof (People vs. Bersalona, 1 SCRA 1110; People
vs. Verzo, 21 SCRA 1403; People vs. Cabiltes, 25 SCRA 112). However, conspiracy
must be proved as clearly and convincingly as the commission of the defense itself
(People vs. Vicente, 28 SCRA 247). Thus, although some of the accused might have
intended to cause harm or injury to the offended victim as their action of running
after him, holding his arm and pointing a revolver at the said victim after the latter
stumbled on the ground quite clearly indicated, no conspiracy will be appreciated
between them and a third accused who later hacked the victim to death, where the
evidence shows that the former did not carry their intent and instead desisted
CRIMINAL LAW | PENALTIES
entirely and fled from the scene when the latter suddenly appeared and attacked
the victim. Under the circumstances, the former will not even be considered as
accomplices of the actual assailant and are entitled to an acquittal. (People vs.
Cajandab, 52 SCRA 165).
LEGAL RESEARCH SERVICE
See SCRA Quick Index-Digest volume one, page 570 on Criminal Law; and page
826 on Evidence.
Aquino, R.C., The Revised Penal Code, 1961 Edition, 2 vols.
Padilla, A., Criminal Law Annotated, 1972-74 Editions, 3 vols.
Moran, M.V., Comments on the Rules of Court, vols. 5 and 6, 1971 Edition.
Padilla, A., Evidence Annotated, 1971 Edition, 2 vols.
Salonga, J.R., Philippine Law on Evidence, 1964 Edition.
————o0o————
VOL. 184, APRIL 26, 1990 671
People vs. Salvilla
G.R. No. 86163. April 26, 1990.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BIENVENIDO
SALVILLA, REYNALDO CANASARES, RONALDO CANASARES, AND
SIMPLICIO CANASARES, BIENVENIDO SALVILLA, defendant-
appellant.
Criminal Law; Robbery; From the moment the offender gained possession of
the thing, even if the culprit had no opportunity to dispose of the same, the unlawful
taking is complete.—It is no defense either that Appellant and his co-accused had
no opportunity to dispose of the personalties taken. That fact does not affect the
nature of the crime. From the moment the offender gained possession of the thing,
even if the culprit had no opportunity to dispose of the same, the unlawful taking
is complete (Reyes, Revised Penal Code Annotated, Book II, 1981 ed., p. 594).
Same; Same; Failure to mention the taking in a sworn statement would not
militate against the credibility of the witness.—It is the contention of Appellant that
Rodita could not have seen the taking because the place was dark since the doors
were closed and there were no windows. It will be recalled, however, that Rodita
was one of the hostages herself and could observe the unfolding of events. Her
failure to mention the taking in her sworn statement would not militate against
her credibility, it being settled that an affidavit is almost always incomplete and
inaccurate and does not disclose the complete facts for want of inquiries or
suggestions.
Same; Same; Same; Findings of the trial court, as to the credibility of the
witness, are entitled to great weight.—In the last analysis, the basic consideration
centers around the credibility of witnesses in respect of which the findings of the
Trial Court are entitled to great weight as it was in a superior position to assess
the same in the course of the trial (see People vs. Ornoza, G.R. No. L-56283, 30
P a g e 73 | 279
June 1987, 151 SCRA 495; People vs. Alcantara, G.R. No. L-38042, 30 June 1987,
151 SCRA 326).
Same; Same; Same; Same; Surrender of the accused was not to be mitigating
when he gave up only after he was surrounded by the constabulary and police
forces.—The “surrender” by the Appellant and his co-accused hardly meets these
requirements. They were, indeed,
________________
*SECOND DIVISION.
672
672 SUPREME COURT REPORTS ANNOTATED
People vs. Salvilla
asked to surrender by the police and military authorities but they refused
until only much later when they could no longer do otherwise by force of
circumstances when they knew they were completely surrounded and there was no
chance of escape. The surrender of the accused was held not to be mitigating as
when he gave up only after he was surrounded by the constabulary and police forces
(People vs. Sigayan, et al., G.R., No. L-18523-26, 30 April 1966, 16 SCRA 839;
People vs. Mationg, G.R. No. L-33488, 29 March 1982, 113 SCRA 167). Their
surrender was not spontaneous as it was motivated more by an intent to insure
their safety. And while it is claimed that they intended to surrender, the fact is that
they did not despite several opportunities to do so. There is no voluntary surrender
to speak of (People vs. Dimdiman, 106 Phil. 391 [1959]).
Same; Same; Same; Same; The crime of serious illegal detention was such a
necessary means as it was selected by appellant and his co-accused to facilitate and
carry out their evil design to stage a robbery.—Under Article 48, a complex crime
arises “when an offense is a necessary means for committing the other.” The term
“necessary means” does not connote indispensable means for if it did then the
offense as a “necessary means” to commit another would be an indispensable
element of the latter and would be an ingredient thereof. The phrase “necessary
means” merely signifies that one crime is committed to facilitate and insure the
commission of the other (Aquino, Revised Penal Code, Vol. I, 1987 ed., p. 624, citing
Dissent, Montemayor, J., Amado Hernandez, 99 Phil. 515). In this case, the crime
of Serious Illegal Detention was such a “necessary means” as it was selected by
Appellant and his co-accused to facilitate and carry out more effectively their evil
design to stage a robbery.
APPEAL from the decision of the Regional Trial Court of Iloilo City, Br. 28.
Gustilo, J.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Resurreccion S. Salvilla for defendant-appellant.
MELENCIO-HERRERA, J.:
CRIMINAL LAW | PENALTIES
Accused Bienvenido Salvilla alone appeals from the Decision of the Regional Trial
Court, Branch 28, Iloilo City,** dated 29
_______________
Penned by Judge Edgar D. Gustilo.
**
673
VOL. 184, APRIL 26, 1990 673
People vs. Salvilla
August 1988, in Criminal Case No. 20092, finding him and his co-accused
Reynaldo, Ronaldo and Simplicio, all surnamed Canasares, guilty beyond
reasonable doubt of the crime of “Robbery with Serious Physical Injuries and
Serious Illegal Detention” and sentencing them to suffer the penalty of reclusion
perpetua.
The Information filed against them reads:
“The undersigned City Fiscal accuses BIENVENIDO SALVILLA, REYNALDO
CANASARES, RONALDO CANASARES, and SIMPLICIO CANASARES, whose
maternal surnames, dated and places of birth cannot be ascertained of the crime of
ROBBERY WITH SERIOUS PHYSICAL INJURIES AND SERIOUS ILLEGAL
DETENTION (Art. 294, paragraph 3, in conjunction with Article 267 of the Revised
Penal Code), committed as follows:
That on or about the 12th day of April, 1986, in the City of Iloilo, Philippines
and within the jurisdiction of this Court, said accused, conspiring and
confederating among themselves, working together and helping one another,
armed with guns and handgrenade and with the use of violence or intimidation
employed on the person of Severino Choco, Mary Choco, Mimia Choco and Rodita
Hablero, did then and there wilfully, unlawfully and criminally take and carry
away, with intent of gain, cash in the amount of P20,000.00, two (2) Men’s wrist
watches, one (1) Lady’s Seiko quartz wrist watch and one (1) Lady’s Citizen wrist
watch and assorted jewelries, all valued at P50,000.00; that on the occasion and by
reason of said robbery, Mary Choco suffered serious physical injuries under
paragraph 2 of Article 263, Bienvenido Salvilla likewise suffered serious physical
injuries and Reynaldo Canasares also suffered physical injuries; that the said
accused also illegally detained, at the compound of the New Iloilo Lumber
Company, Iznart Street, Iloilo City, Severino Choco, owner/ proprietor of said
Lumber Company, Mary Choco, Mimie Choco, who is a minor, being 15 years of
age, and Rodita Hablero, who is a salesgirl at said Company; that likewise on the
occasion of the robbery, the accused also asked and were given a ransom money of
P50,000.00; that the said crime was attended by aggravating circumstances of
band, and illegal possession of firearms and explosives; that the amount of
P20,000.00, the ransom money of P50,000.00, two (2) Men’s wrist watches, two (2)
Lady’s wrist watches, one (1) .38 caliber revolver and one (1) live grenade were
recovered from the accused; to the damage and prejudice of the New Iloilo Lumber
Company in the amount of P120,000.00.”
674
674 SUPREME COURT REPORTS ANNOTATED
P a g e 74 | 279
 People vs. Salvilla
The evidence for the prosecution may be re-stated as follows:
On 12 April 1986, a robbery was staged by the four accused at the New Iloilo
Lumber Yard at about noon time. The plan was hatched about two days before. The
accused were armed with homemade guns and a hand grenade. When they entered
the establishment, they met Rodita Habiero, an employee thereat who was on her
way out for her meal break and announced to her that it was a hold-up. She was
made to go back to the office and there Appellant Salvilla pointed his gun at the
owner, Severino Choco, and his two daughters, Mary and Mimie, the latter being a
minor 15 years of age, and told the former that all they needed was money. Hearing
this, Severino told his daughter, Mary, to get a paper bag wherein he placed
P20,000.00 cash (P5,000.00, according to the defense) and handed it to Appellant.
Thereafter, Severino pleaded with the four accused to leave the premises as they
already had the money but they paid no heed. Instead, accused Simplicio Canasares
took the wallet and wristwatch of Severino after which the latter, his two
daughters, and Rodita, were herded to the office and kept there as hostages.
At about 2:00 o’clock of the same day, the hostages were allowed to eat. The
four accused also took turns eating while the others stood guard. Then, Appellant
told Severino to produce P100,000.00 so he and the other hostages could be
released. Severino answered that he could not do so because it was a Saturday and
the banks were closed.
In the meantime, police and military authorities had surrounded the premises
of the lumber yard. Major Melquiades B. Sequio, Station Commander of the INP of
Iloilo City, negotiated with the accused using a loud speaker and appealed to them
to surrender with the assurance that no harm would befall them as he would
accompany them personally to the police station. The accused refused to surrender
or to release the hostages.
Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the
negotiations. In her dialogue with the accused, which lasted for about four hours,
Appellant demanded P100,000.00, a coaster, and some raincoats. She offered them
P50,000.00 instead, explaining the difficulty of raising more as it was a Saturday.
Later, the accused agreed to receive the same and to release Rodita to be
accompanied by Mary Choco in going
675
VOL. 184, APRIL 26, 1990 675
People vs. Salvilla
out of the office. When they were out of the door, one of the accused whose face was
covered by a handkerchief, gave a key to Mayor Caram. With this, Mayor Caram
unlocked the padlocked door and handed to Rodita the P50,000.00, which the latter,
in turn, gave to one of the accused. Rodita was later set free but Mary was herded
back to the office.
Mayor Caram, Major Sequio, and even volunteer radio news-casters continued
to appeal to the accused to surrender peacefully but they refused. Ultimatums were
given but the accused did not budge. Finally, the police and military authorities
decided to launch an offensive and assault the place. This resulted in injuries to
the girls, Mimie and Mary Choco as well as to the accused Ronaldo and Reynaldo
CRIMINAL LAW | PENALTIES
Canasares. Mary suffered a “macerated right lower extremity just below the knee”
so that her right leg had to be amputated. The medical certificate described her
condition as “in a state of hemorrhagic shock when she was brought in to the
hospital and had to undergo several major operations during the course of her
confinement from April 13, 1986 to May 30, 1986.”
For his part, Appellant Salvilla confirmed that at about noon time of 12 April
1986 he and his co-accused entered the lumber yard and demanded money from the
owner Severino Choco. He demanded P100,000.00 but was given only P5,000.00,
which he placed on the counter of the office of the lumber yard. He admitted that
he and his co-accused kept Severino, his daughters, and Rodita inside the office. He
maintained, however, that he stopped his co-accused from getting the wallet and
wristwatch of Severino and, like the P5,000.00 were all left on the counter, and
were never touched by them. He claimed further that they had never fired on the
military because they intended to surrender. Appellant’s version also was that
during the gunfire, Severino’s daughter stood up and went outside; he wanted to
stop her but he himself was hit by a bullet and could not prevent her. Appellant
also admitted the appeals directed to them to surrender but that they gave
themselves up only much later.
After trial, the Court a quo meted out a judgment of conviction and sentenced
each of the accused “to suffer the penalty of reclusion perpetua, with the accessory
penalties provided by law and to pay the costs.”
676
676 SUPREME COURT REPORTS ANNOTATED
People vs. Salvilla
Appellant Salvilla’s present appeal is predicated on the following Assignments of
Error:
1. “1.The lower court erred in holding that the crime charged was
consummated and in not holding that the same was merely attempted.
2. “2.The lower court erred in not appreciating the mitigating circumstance
of voluntary surrender.”
Upon the facts and the evidence, we affirm.
The defense contends that “The complete crime of larceny (theft/robbery) as
distinguished from an attempt requires asportation or carrying away, in addition
to the taking. In other words, the crime of robbery/theft has three consecutive
stages: 1) the giving 2) the taking and 3) the carrying away or asportation. And
without asportation the crime committed is only attempted” (Memorandum for
Appellant Salvilla, Records, p. 317).
There is no question that in robbery, it is required that there be a taking of
personal property belonging to another. This is known as the element of
asportation, the essence of which is the taking of a thing out of the possession of
the owner without his privity and consent and without the animus revertendi
(Aquino, Revised Penal Code, p. 97, citing 5 C.J. 607). In fact, if there is no actual
taking, there can be no robbery. Unlawful taking of personal property of another is
an essential part of the crime of robbery.
P a g e 75 | 279
 Appellant insists that while the “giving” has been proven, the “taking” has not.
And this is because neither he nor his three co-accused touched the P5,000.00 given
by Severino nor the latter’s wallet or watch during the entire incident; proof of
which is that none of those items were recovered from their persons.
Those factual allegations are contradicted by the evidence. Rodita, the
lumberyard employee, testified that upon demand by Appellant, Severino put
P20,000.00 inside a paper bag and subsequently handed it to Appellant. In turn,
accused Simplicio Canasares took the wallet and wristwatch of Severino. In respect
of the P50,000.00 from Mayor Caram, Rodita declared that the Mayor handed the
amount to her after she (the Mayor) had opened the padlocked door and that she
thereafter gave the amount to one of the holduppers. The “taking” was, therefore,
677
VOL. 184, APRIL 26, 1990 677
People vs. Salvilla
sufficiently proved (TSN, July 1, 1987, pp. 12-13, 15-16, 27-31). The money
demanded, and the wallet and wristwatch were within the dominion and control of
the Appellant and his co-accused and completed the taking.
“The State established a ‘taking’ sufficient to support a conviction of robbery even
though the perpetrators were interrupted by police and so did not pick up the
money offered by the victim, where the defendant and an accomplice, armed with
a knife and a club respectively, had demanded the money from the female clerk of
a convenience store, and the clerk had complied with their instructions and placed
money from the register in a paper bag and then placed the bag on the counter in
front of the two men; these actions brought the money within the dominion and
control of defendant and completed the taking.” (Johnson vs. State, 432 So 2d 758).
“Severance of the goods from the possession of the owner and absolute control
of the property by the taker, even for an instant, constitutes asportation.” (Adams
vs. Commonwealth, 154 SW 381; State vs. Murray 280 SW 2d 809; Mason vs.
Commonwealth, 105 SE 2d 149) [italics supplied].
It is no defense either that Appellant and his co-accused had no opportunity to
dispose of the personalties taken. That fact does not affect the nature of the crime.
From the moment the offender gained possession of the thing, even if the culprit
had no opportunity to dispose of the same, the unlawful taking is complete (Reyes,
Revised Penal Code Annotated, Book II, 1981 ed., p. 594).
“The crime is consummated when the robber acquires possession of the property,
even if for a short time, and it is not necessary that the property be taken into the
hands of the robber, or that he should have actually carried the property away, out
of the physical presence of the lawful possessor, or that he should have made his
escape with it” (People vs. Quinn, 176 P 2d 404; Woods vs. State, 220 SW 2d
644; People vs. Beal, 39 P 2d 504; People vs. Clark, 160 P 2d 553).
Contrary to Appellant’s submission, therefore, a conviction for consummated and
not merely attempted Robbery is in order.
It is the contention of Appellant that Rodita could not have seen the taking
because the place was dark since the doors were
678
678 SUPREME COURT REPORTS ANNOTATED
CRIMINAL LAW | PENALTIES
People vs. Salvilla
closed and there were no windows. It will be recalled, however, that Rodita was one
of the hostages herself and could observe the unfolding of events. Her failure to
mention the taking in her sworn statement would not militate against her
credibility, it being settled that an affidavit is almost always incomplete and
inaccurate and does not disclose the complete facts for want of inquiries or
suggestions (People vs. Andaya, G.R. No. L-63862, 31 July 1987, 152 SCRA
570; People vs. Tan, et al., 89 Phil. 337 [1951]).
The fact, too, that Rodita was an employee of Severino would not lessen her
credibility. The defense has not proven that she was actuated by any improper
motive in testifying against the accused.
In the last analysis, the basic consideration centers around the credibility of
witnesses in respect of which the findings of the Trial Court are entitled to great
weight as it was in a superior position to assess the same in the course of the trial
(see People vs. Ornoza, G.R. No. L-56283, 30 June 1987, 151 SCRA 495; People vs.
Alcantara, G.R. No. L-38042, 30 June 1987, 151 SCRA 326).
Anent the second assignment of error, the “surrender” of the Appellant and his
co-accused cannot be considered in their favor to mitigate their liability. To be
mitigating, a surrender must have the following requisites: (a) that the offender
had not been actually arrested; (b) that the offender surrendered himself to a
person in authority or to his agent; and (c) that the surrender was voluntary (People
vs. Canamo, G.R. No. L-62043, 13 August 1985, 138 SCRA 141).
The “surrender” by the Appellant and his co-accused hardly meets these
requirements. They were, indeed, asked to surrender by the police and military
authorities but they refused until only much later when they could no longer do
otherwise by force of circumstances when they knew they were completely
surrounded and there was no chance of escape. The surrender of the accused was
held not to be mitigating as when he gave up only after he was surrounded by the
constabulary and police forces (People vs. Sigayan, et al., G.R., No. L-18523-26, 30
April 1966, 16 SCRA 839; People vs. Mationg, G.R. No. L-33488, 29 March
1982, 113 SCRA 167). Their surrender was not spontaneous as it was motivated
more by an intent to insure their
679
VOL. 184, APRIL 26, 1990 679
People vs. Salvilla
safety. And while it is claimed that they intended to surrender, the fact is that they
did not despite several opportunities to do so. There is no voluntary surrender to
speak of (People vs. Dimdiman, 106 Phil. 391 [1959]).
All told, the assigned errors remain unsubstantiated and we find the guilt of
the accused-appellant, Bienvenido Salvilla, established beyond reasonable doubt.
Although unassigned as an error, we deem it necessary to turn now to the
nature of the linked offenses involved and the penalty imposed by the Trial Court.
Appellant and his co-accused were charged in the Information with “Robbery
with Serious Physical Injuries and Serious Illegal Detention (“Art. 295, par. 3, in
conjunction with Art. 267, RPC”), and sentenced to reclusion perpetua. We agree
with the Trial Court that a complex crime under Article 48 of the Revised Penal
P a g e 76 | 279
Code has been committed such that the penalty for the more serious offense of
Serious Illegal Detention (Art. 267, Revised Penal Code), or “reclusion perpetua to
death,” is to be imposed instead of the penalty prescribed for Robbery with Serious
Physical Injuries (Art. 294 (3), which is reclusion temporal.
Under Article 48, a complex crime arises “when an offense is a necessary means
for committing the other.” The term “necessary means” does not connote
indispensable means for if it did then the offense as a “necessary means” to commit
another would be an indispensable element of the latter and would be an ingredient
thereof. The phrase “necessary means” merely signifies that one crime is committed
to facilitate and insure the commission of the other (Aquino, Revised Penal Code,
Vol. I, 1987 ed., p. 624, citing Dissent, Montemayor, J., Amado Hernandez, 99 Phil.
515). In this case, the crime of Serious Illegal Detention was such a “necessary
means” as it was selected by Appellant and his co-accused to facilitate and carry
out more effectively their evil design to stage a robbery.
The facts of this case differ from those in People vs. Astor, et als. (G.R. Nos. L-
71765-66, 29 April 1987, 149 SCRA 325) where the accused were convicted of
Robbery but acquitted in the case for Serious Illegal Detention and where it was
held that “the detention is absorbed in the crime of robbery.” For one, in Astor,
there were two (2) separate Informations filed, one for Robbery
680
680 SUPREME COURT REPORTS ANNOTATED
People vs. Salvilla
and another for Serious Illegal Detention. In the present case, only one Information
was filed charging the complex offense. For another, in Astor, the robbery had
already been consummated and the detention was merely to forestall the capture
of the robbers by the police. Not so in this case, where the detention was availed of
as a means of insuring the consummation of the robbery. Further, in Astor, the
detention was only incidental to the main crime of robbery so that it was held
therein:
“x x x were appellants themselves not trapped by the early arrival of the police at
the scene of the crime, they would have not anymore detained the people inside
since they have already completed their job. Obviously, appellants were left with
no choice but to resort to detention of these people as security, until arrangements
for their safe passage were made. This is not the crime of illegal detention
punishable under the penal laws but an act of restraint in order to delay the pursuit
of the criminals by peace officers (People v. Sol, 9 Phil. 265; People v. Uday, 55 Phil.
167, cited in the Revised Penal Code, Aquino, Vol. 3, 1976 ed., p. 1337). Where the
victims in a robbery case were detained in the course of robbery, the detention is
absorbed by the crime of robbery (P. v. Baysa, 92 Phil. 1008, id.). In the case at bar,
the detention was only incidental to the main crime of robbery, and although in the
course thereof women and children were also held, that threats to kill were made,
the act should not be considered as a separate offense. Appellants should only be
held guilty of robbery.”
In contract, the detention in the case at bar was not only incidental to the robbery
but was a necessary means to commit the same. After the amount of P20,000.00
was handed to Appellant, the latter and his co-accused still refused to leave. The
CRIMINAL LAW | PENALTIES
victims were then taken as hostages and the demand to produce an additional
P100,000.00 was made as a prerequisite for their release. The detention was not
because the accused were trapped by the police nor were the victims held as
security against the latter. The detention was not merely a matter of restraint to
enable the malefactors to escape, but deliberate as a means of extortion for an
additional amount. The police and other authorities arrived only much later after
several hours of detention had already passed. And, despite appeals to appellant
and his co-accused to surrender, they adamantly refused until the amount of
P100,000.00 they demanded could be turned over to
681
VOL. 184, APRIL 26, 1990 681
People vs. Salvilla
them. They even considered P50,000.00, the amount being handed to them, as
inadequate.
The foregoing features also distinguish this case from those of U.S. v. Sol, 9
Phil. 265 [1907] where the restraint was for no other purpose than to prevent the
victims from reporting the crime to the authorities; from People v. Gamboa, 92 Phil.
1085 [1953] where the victims were taken to a place one kilometer away and shot
in order to liquidate the witnesses to the robbery; from People v. Baysa, 92 Phil.
1008 [1953]; People v. Manzanilla, 43 Phil. 167 [1922], all of which cases were cited
in Astor, and where the victims were only incidentally detained so that the
detention was deemed absorbed in robbery.
In other words, unlike in the above cases, the elements of the offense of Serious
Illegal Detention are present in this case. The victims were illegally deprived of
their liberty. Two females (Mary and Minnie), and a minor (Minnie), a specified
circumstance in Article 267 (3), were among those detained. The continuing
detention was also for the purpose of extorting ransom, another listed circumstance
in Article 267 (last parag.), not only from the detained persons themselves but even
from the authorities who arrived to rescue them.
It follows then that as the detention in this case was not merely incidental to
the robbery but a necessary means employed to facilitate it, the penalty imposed
by the Trial Court is proper.
WHEREFORE, the judgment appealed from is hereby AFFIRMED.
Proportionate costs.
SO ORDERED.
Paras, Padilla, Sarmiento and Regalado, JJ., concur.
Judgment affirmed.
Note.—Detention is absorbed if it is incidental to the crime of robbery. (People
vs. Astor, 149 SCRA 325.)
——o0o——
VOL. 304, MARCH 11, 1999 611
People vs. Valdez
G.R. No. 127663. March 11, 1999.*
P a g e 77 | 279
 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO
VALDEZ, accused-appellant.
Criminal Law; Witnesses; The lack of precision with which a witness
distinguished between the person who flagged down the tricycle and the other person
whom he recognized because of the headlight of the tricycle cannot be considered as
inconsistency at all.—In his Statements dated September 20, 1995 (Exhibit 1) and
September 24, 1995 (Exhibit 4), William Montano pointed to Bernard Castro as the
person who flagged down the motorized tricycle ridden by the victims. On
November 8, 1995, William and his co-victim/survivor Randy Tibule executed a
“Pinagsamang Salaysay sa Pag-uurong ng Demanda” where they disclaimed
having seen Bernard Castro at the scene of the crime. They declared that after a
more thorough consideration of what transpired, they have realized that the filing
of the complaint against Bernard Castro was a mistake and the result of
misunderstanding or misapprehension of what actually happened. In his testimony
in court, William, however, identified accused-appellant as the person illuminated
by the headlight of the tricycle, for which reason William readily recognized him.
We, therefore, find nothing inconsistent between his declarations during the
investigation and his testimony in court. The lack of precision with which he
distinguished between the person who flagged down the tricycle and the other
person whom he recognized because of the headlight of the tricycle cannot be
considered as inconsistency at all. The same holds
_______________
*EN BANC.
612
612 SUPREME COURT REPORTS ANNOTATED
People vs. Valdez
true with claimed discrepancies between the statements of Randy Tibule
during the investigation and his testimony in court.
Same; Motive; Judicial Notice; Lack of motive for committing the crime does
not preclude conviction, considering that, nowadays, it is a matter of judicial
knowledge that persons have killed or committed serious offense for no reason at
all.—It is basic and fundamental rule that proof of motive is necessary for
conviction only when there is doubt as to the identity of the accused, not when
accused has been positively identified as in the present case (People vs. Caggauan,
94 Phil. 118 [1953]; People vs. Realon, 99 SCRA 422 [1980]; People vs. Pano, 257
SCRA 274 [1996]). Besides, it is also to be noted that lack of motive for committing
the crime does not preclude conviction, considering that, nowadays, it is a matter
of judicial knowledge that persons have killed or committed serious offense for no
reason at all (People vs. Cabodoc, 263 SCRA 187 [1996]).
Same; Murder; Aggravating Circumstances; Treachery; The settled rule is
that treachery can exist even if the attack is frontal if it is sudden and unexpected,
giving the victim no opportunity to repel it or defend himself against such attack.—
Under paragraph 16, Article 14 of the Revised Penal Code, the qualifying
circumstance of treachery is present when the offender employs means, methods,
CRIMINAL LAW | PENALTIES
or forms in the execution of the crime which tend directly and especially to ensure
its execution without risk to himself arising from any defensive or retaliatory act
which the victim might make (People vs. Santos, 270 SCRA 650 [1997]). The settled
rule is that treachery can exist even if the attack is frontal if it is sudden and
unexpected, giving the victim no opportunity to repel it or defend himself against
such attack. What is decisive is that the execution of the attack, without the
slightest provocation from the victim who is unarmed, made it impossible for the
victim to defend himself or to retaliate (People vs. Javier, 269 SCRA 181 [1997]).
Same; Same; Same; Evident Premeditation; It is not enough that evident
premeditation is suspected or surmised, but criminal intent must be evidenced by
notorious outward acts evidencing determination to commit the crime—in order to
be considered an aggravation of the offense, the circumstance must not merely be
“premeditation” but must be “evident premeditation.”—The trial court ruled that
evident premeditation is likewise present. After reviewing the evidence, however,
we do not find any showing of
613
VOL. 304, MARCH 11, 1999 613
People vs. Valdez
evident premeditation on the part of accused-appellant. While there may be
testimonial evidence pointing to an altercation between Bernard Castro and a
certain Capistrano, it does not sufficiently prove the attendance of the aggravating
circumstance of evident premeditation. It is not enough that evident premeditation
is suspected or surmised, but criminal intent must be evidenced by notorious
outward acts evidencing determination to commit the crime. In order to be
considered an aggravation of the offense, the circumstance must not merely be
“premeditation”; it must be “evident premeditation” (People vs. Torejas, 43 SCRA
158 [1972]).
Same; Same; Same; Same; Requisites.—To establish the existence of evident
premeditation, the following have to be proved: (1) the time when the offender
determined to commit the crime; (2) an act manifestly indicating that the offender
had clung to his determination; and (3) sufficient lapse of time between the
determination and the execution to allow the offender to reflect on the
consequences of his act (People vs. Juan, 254 SCRA 478 [1996]).
Same; Same; Same; Same; Establishing a basis or motive for the commission
of the crime does not constitute sufficient ground to consider the existence of evident
premeditation.—Establishing a basis or motive for the commission of the crime does
not constitute sufficient ground to consider the existence of evident premeditation.
At best, it may indicate the time when the offenders determined to commit the
crime (the first element). Their act of arming themselves with caliber .30 carbines
and thereafter waiting for their supposed victims at ambush positions may have
also indicated that they clung to their determination to commit the crime (the
second element). More important than these two elements is the proof that a
sufficient period of time had elapsed between the outward act evidencing intent
and actual commission of the offense (the third element). There must have been
enough opportunity for the initial impulse to subside. This element is indispensable
for circumstance of evident premeditation to aggravate the crime. In People vs.
P a g e 78 | 279
Canial, 46 SCRA 134 [1972], this Court reiterates: In other words, this
circumstance can be taken into account only when there had been a cold and deep
meditation, and a tenacious persistence in the accomplishment of the criminal act.
There must be ‘an opportunity to coolly and serenely think and deliberate on the
meaning and the consequences of what they had planned to do, an interval long
enough for the conscience and better judgment to overcome the evil desire and
scheme.
614
614 SUPREME COURT REPORTS ANNOTATED
People vs. Valdez
Same; Same; Same; Abuse of Superior Strength; The aggravating
circumstance of abuse of superior strength is absorbed in treachery.—The other
aggravating circumstance considered by the trial court is that of abuse of superior
strength. This contravenes the very basic and elementary doctrine in our
jurisdiction that the aggravating circumstance of abuse of superior strength is
absorbed in treachery (People vs. Mobe, 81 Phil. 58 [1948]; People vs. Nierra, 96
SCRA 1 [1980]; People vs. Torrefiel, 256 SCRA 369 [1996]).
Same; Same; Complex Crimes; Where there was more than one gunman and
several victims, each act by each gunman pulling the trigger of their respective
firearms, aiming each particular moment at different persons constitute distinct and
individual acts which cannot give rise to the complex crime of multiple murder.—
The case at bar does not fall under any of the two instances defined above. The
Office of the Provincial Prosecutor of Pangasinan erroneously considered the case
as falling under the first. It is clear from the evidence on record, however, that the
four crimes of murder resulted not from a single act but from several individual
and distinct acts. For one thing, the evidence indicates that there was more than
one gunman involved, and the act of each gunman is distinct from that of the other.
It cannot be said therefore, that there is but a single act of firing a single firearm.
There were also several empty bullet shells recovered from the scene of the crime.
This confirms the fact that several shots were fired. Furthermore, considering the
relative positions of the gunmen and their victims, some of whom were riding the
motorized tricycle itself while the others were seated inside the sidecar thereof, it
was absolutely impossible for the four victims to have been hit and killed by a single
bullet. Each act by each gunman pulling the trigger of their respective firearms,
aiming each particular moment at different persons constitute distinct and
individual acts which cannot give rise to the complex crime of multiple murder. We
therefore rule that accused-appellant is guilty, not of a complex crime of multiple
murder, but of four counts of murder for the death of the four victims in this case.
In the same manner, accused-appellant is likewise held guilty for two counts of
frustrated murder.
Same; Same; Illegal Possession of Firearms; Aggravating Circumstances;
There can be no separate conviction of the crime of illegal possession of firearms
under Presidential Decree No. 1866 in view of the amendments introduced by
Republic Act No. 8294, illegal posses-
615
VOL. 304, MARCH 11, 1999 615
CRIMINAL LAW | PENALTIES
People vs. Valdez
sion being merely taken as an aggravating circumstance to the other crime
committed.—Now, to the matter of accused-appellant’s conviction for illegal
possession of unlicensed firearm under Presidential Decree No. 1866. It was
recently held in the case entitled People vs. Molina (G.R. Nos. 115835-36, July 22,
1998), and reiterated in People vs. Feloteo (G.R. No. 124212, September 17, 1998),
that there can be no separate conviction of the crime of illegal possession of firearms
under Presidential Decree No. 1866 in view of the amendments introduced by
Republic Act No. 8294. Instead, illegal possession of firearms is merely to be taken
as an aggravating circumstance per Section 1 of Republic Act No. 8294, which in
part, provides: If homicide or murder is committed with the use of unlicensed
firearm, such use of an unlicensed firearm shall be considered as an aggravating
circumstance.
Same; Same; Same; Republic Act 8294; Ex Post Facto Laws; Insofar as
Republic Act 8294 will spare the accused from a separate conviction for the crime of
illegal possession of firearms, it may be given retroactive application.—Republic Act
No. 8294 took effect on July 6, 1997, fifteen days after its publication on June 21,
1997. The crimes involved in the case at bar were committed on September 17,
1995. As in the case of any penal law, the provisions of Republic Act No. 8294 will
generally have prospective application. In cases, however, where the new law will
be advantageous to the accused, the law may be given retroactive application
(Article 22, Revised Penal Code). Insofar as it will spare accused-appellant in the
case at bar from a separate conviction for the crime of illegal possession of firearms,
Republic Act No. 8294 may be given retroactive application in Criminal Case No.
U-8749 (for Illegal Possession of Firearm) subject of this present review.
Same; Same; Same; Same; Same; In general, all pending cases involving
illegal possession of firearms should continue to be prosecuted and tried if no other
crimes expressly indicated in Republic Act No. 8294 are involved.—As a word of
caution, however, the dismissal of the present case for illegal possession of firearm
should not be misinterpreted as meaning that there can no longer be any
prosecution for the crime of illegal possession of firearm. In general, all pending
cases involving illegal possession of firearm should continue to be prosecuted and
tried if no other crimes expressly indicated in Republic Act No. 8294 are involved
(murder or homicide under Sec-
616
616 SUPREME COURT REPORTS ANNOTATED
People vs. Valdez
tion 1, and rebellion, insurrection, sedition or attempted coup d’etat under
Section 3).
Same; Same; Same; Same; Same; Insofar as the use of an unlicensed firearm,
as a special aggravating circumstance, unduly raises the penalty for the four counts
of murder from four reclusion perpetua to that of four-fold death, Republic Act No.
8294 will not be given retroactive application, lest it might acquire the character of
an expost facto law.—The use of an unlicensed firearm in the case at bar cannot be
considered as a special aggravating circumstance in Criminal Case No. U-8747 (for
Complex Crime of Multiple Murder), also under review herein, because it will
P a g e 79 | 279
unduly raise the penalty for the four counts of murder from four reclusion
perpetua to that of four-fold death. Insofar as this particular provision of Republic
Act No. 8294 is not beneficial to accused-appellant because it unduly aggravates
the crime, this new law will not be given retroactive application, lest it might
acquire the character of an ex-post facto law.
APPEAL from a decision of the Regional Trial Court of Urdaneta, Pangasinan,
Br. 45.
The facts are stated in the opinion of the Court.
The Solicitor General for plaitniff-appellee.
Fernando P. Cabrera for accused-appellant.
MELO, J.:
Accused-appellant Rolando Valdez seeks reversal of the judgment of conviction
promulgated by Branch 45 of the Regional Trial Court of the First Judicial Region
stationed in Urdaneta, Pangasinan, on October 24, 1996 sentencing him to death
for the complex crime of Multiple Murder with Double Frustrated Murder, and
likewise separately sentencing him to suffer the prison term of reclusion
perpetua for the crime of Illegal Possession of Firearms and Ammunitions
(Presidential Decree No. 1866).
617
VOL. 304, MARCH 11, 1999 617
People vs. Valdez
The Information against accused-appellant, Bernardo Castro, and one John Doe for
the complex crime of Multiple Murder with Double Frustrated Murder charged:
That on or about 8:30 o’clock in the evening of September 17, 1995, at Sitio
Cabaoangan, barangay Nalsian, municipality of Manaoag, province of Pangasinan,
and within and jurisdiction of this Honorable Court, the said accused conspiring,
confederating and mutually helping one another with intent to kill, and each armed
with caliber .30 carbines did then and there wilfully, unlawfully and feloniously,
with evident premeditation, abuse of superior strength and treachery,
simultaneously attacked and fired their caliber .30 carbines at Ramon Garcia, Jr.,
Jean Marie Garcia, Willy Acosta, Sandra Montano, William Montano and Randy
Tibule while they were on board a tricycle, on their way to a dance party, hitting
them in the different parts of their bodies which caused the instantaneous death of
Ramon Garcia, Jr., Jean Marie Garcia, Willy Acosta and Sandra Montano, to the
damage and prejudice of their respective heirs, and inflicting fatal injuries to
William Montano and Randy Tibule, in the different parts of their bodies, having
thus performed all the acts which would have produced the crime of murder with
respect to both but which did not by reason of causes independent of the will of the
accused, namely, the able and timely medical assistance given the said victims
William Montano and Randy Tibule, which prevented their death.
Contrary to Article 248 in Relation to Article 48 and Article 6 of the RPC.
(pp. 1-2, Record of Crim. Case No. U-8747)
CRIMINAL LAW | PENALTIES
The Information for Illegal Possession of Firearms and Ammunitions pertinently
averred:
That on or about 8:30 o’clock in the evening of September 17, 1995 at Sitio
Cabaoangan, Barangay Nalsian, Municipality of Manaoag, province of Pangasinan
and within and jurisdiction of this Honorable Court, the said accused, did then and
there wilfully, unlawfully and feloniously, have in his possession, custody and
control, a firearm, to wit: Caliber .30 carbine without first having secured the
proper license thereof from the authorities and which he used in committing the
offense of multiple murder and double frustrated murder.
618
618 SUPREME COURT REPORTS ANNOTATED
People vs. Valdez
Contrary to Presidential Decree 1866.
(p. 1, Record of Crim. Case No. U-8749)
The inculpatory facts adduced by the prosecution during trial are succinctly
summarized in the People’s brief as follows:
On September 17, 1995, at around 8:00 in the evening, William Montano (16 years
old), Randy Tibule (17 years old), Jean Marie Garcia, Willie Acosta, Sandra
Montano and Ramon Garcia, Jr. were at the house of Randy Tibule in Manaoag,
Pangasinan. They were discussing how to go to the wedding party of Jean Marie’s
cousin in Sitio Cabaoangan (TSN, June 11, 1996, pp. 7-8; June 18, 1996, pp. 23-24).
After discussion, they rode in the tricycle driven by Ramon Garcia going to
Cabaoangan. Behind Garcia were Tibule and Willie. Jean was seated inside the
side car with Sandra and William Montano (TSN, June 11, 1996, pp. 7-11; TSN,
June 18, 1996, pp. 23-25). After making a turn along the barangay road leading to
Sitio Cabaoangan, they met appellant Rolando Valdez and his companions who
were armed with guns. The tricycle’s headlight flashed on their faces. Without
warning, they pointed their guns and fired at Montano’s group. Thereafter, after
uttering the words, “nataydan, mapan tayon” (They are already dead. Let us go),
Valdez and companions left (TSN, June 11, 1996, pp. 11-14).
The shooting incident left Ramon Garcia, Jean Marie Garcia, Sandra Montano
and Willie Acosta dead (TSN, June 11, 1996, pp. 14-16). They sustained the
following injuries:
Jean Marie Garcia:
—gunshot wound, .5 cm. in diameter, 1 inch lateral of the nipple right through and
through trajecting the middle lobe of the lungs, rt ventricle of the heart, middle
lobe of the lung, left with point of exit 1 inch in diameter 1 inch lateral of the nipple,
left.
(Exhibit B)
Ramon Garcia:
—gunshot wound, .5 cm. in diameter point of entrance ear canal left thru and thru
trajecting the skull brain substance with point of exit temporal area right.
619
VOL. 304, MARCH 11, 1999 619
People vs. Valdez
P a g e 80 | 279
—another gunshot wound .5 cm. in diameter point of entrance anterior axilliary 1. 2)To the heirs of the deceased WILLIE ACOSTA:
line left at the lable nipple trajecting the lung (left) heart ventricle and lung (right)
with point of exit 1 cm. in diameter, 1 inch lateral the nipple right. 1. a)P50,000 as indemnity
(Exhibit C) 2. b)P26,358.00 as actual damages
Sandra Montano: 3. c)P500,000.00 as moral damages
—gunshot wound, .6 cm. in diameter, point of entrance at the temporal area left,
penetrating the skin, skull minigas, brain substance (right) (tempral regis) where
1. 3)To the heirs of the deceased JEMARIE GARCIA:
the slug lodge.
(Exhibit D)
Willie Acosta: 1. a)P50,000 as indemnity
—gunshot wound, .5 cm. in diameter below coastal arch point of entrance trajecting 2. b)P500,000.00 as moral damages
the upper 3rd of the stomach thru and thru trajecting the upper third of the
stomach of thoracic vein with the point of exit 1 cm. in diameter at the level of the 1. 4)To the heirs of the deceased Sandra Montano:
7th thorasic vertebrae.
(Exhibit E)
1. a)P50,000 as indemnity
On the other hand, William Montano and Randy Tibule survived the attack.
2. b)P48,269.80 as actual damages
They suffered serious gunshot injuries that could have caused their death were it
3. c)P500,000.00 as moral damages
not for the timely medical attention given them (TSN, July 3, 1996, p. 6). Montano
sustained several gunshot wounds on the left arm, two on the left upper back,
another on the left shoulder and middle right finger (TSN, June 25, 1996, p. 608). 1. 5)To the victim WILLIAM MONTANO:
Tibule sustained two gunshot wounds, one at the fifth upper quadrant (stomach)
and the other at the left periumbelical (TSN, July 3, 1996, pp. 7-8). 1. a)P39,133.92 as actual damages
(pp. 215-219, Rollo.) 2. b)P100,000.00 as moral damages
In its decision dated October 24, 1996, the trial court rendered a judgment of
conviction in the two cases, finding and disposing: 1. 6)To the victim RANDY TIBULE:
IN CRIMINAL CASE NO. U-8747:—
the accused ROLANDO VALDEZ y LIPURDA, GUILTY beyond reasonable doubt 1. a)P36,233.65 as actual damages
of the crime of MULTIPLE MURDER WITH DOUBLE FRUSTRATED MURDER 2. b)P100,000.00 as moral damages and to pay the costs.
defined and penalized under Republic Act No. 7659 otherwise known as the
Heinous Crime Law, the offense having been a complex crime the penalty of which
is in WITH RESPECT TO CRIMINAL CASE NO. U-8749:—the accused ROLANDO
620 VALDEZ y LIPURDA GUILTY beyond reasonable doubt of the crime of ILLEGAL
POSSESSION OF FIREARM AND AMMUNITIONS (Presidential Decree No.
620 SUPREME COURT REPORTS ANNOTATED 1866) and hereby sentences him to suffer imprisonment of RECLUSION
People vs. Valdez PERPETUA and to pay the costs.
the maximum, and with the attendant aggravating circumstances of evident Finally, it is said: “Dura lex, sed lex,” translated as: “The law is harsh, but that
premeditation and abuse of superior strength, hereby sentences him the ultimum is the law!”
supplicum of DEATH to be executed pursuant to Republic Act No. 8177 known as 621
the Lethal Injection Law, to pay the heirs of the deceased RAMON GARCIA, JR., VOL. 304, MARCH 11, 1999 621
WILLIE ACOSTA, JEMARIE GARCIA and SANDRA MONTANO and the injured
People vs. Valdez
victims WILLIAM MONTANO and RANDY TIBULE, as follows:
SO ORDERED.
(pp. 180-181, Rollo.)
1. 1)To the heirs of the deceased Ramon Garcia, Jr.: Hence, the instant review, with accused-appellant anchoring his plea for reversal
on the following assigned errors:
1. a)P50,000 as indemnity
2. b)P52,116.00 as actual damages
3. c)P500,000.00 as moral damages
CRIMINAL LAW | PENALTIES P a g e 81 | 279
 1. I.THE TRIAL COURT ERRED FAILING TO CONSIDER THE
MATERIAL, SUBSTANTIAL, IMPORTANT AND SIGNIFICANT,
DISCREPANCIES IN THE AFFIDAVITS OF PROSECUTION
WITNESSES AND THEIR TESTIMONIES IN COURT;
2. II.THE TRIAL COURT ERRED IN UPHOLDING THE RECANTATIONS
OF PROSECUTION WITNESSES;
3. III.THE TRIAL COURT ERRED IN FAILING TO CONSIDER THE
SERIOUS DOUBTS ON THE IDENTITY OF ACCUSED, ROLANDO
VALDEZ AS THE GUNMAN;
4. IV.THE TRIAL COURT ERRED IN FAILING TO CONSIDER MOTIVE
ON THE PART OF BERNARDO CASTRO TO FIRE AT, AS HE
ACTUALLY FIRED AT THE OCCUPANTS OF MOTORIZED
TRICYCLE;
5. V.THE TRIAL COURT ERRED IN FAILING TO APPRECIATE
AGAINST THE PROSECUTION ITS DELIBERATE FAILURE TO
PRESENT THE POLICE INVESTIGATORS WHO INVESTIGATED
THE INCIDENT AND IT WAS THE DEFENSE WHICH PRESENTED
SAID POLICE INVESTIGATORS;
6. VI.THE TRIAL COURT ERRED IN DECLARING THAT ACCUSED
ROLANDO VALDEZ DID NOT DENY THE ACCUSATION AGAINST
HIM FOR VIOLATION OF P.D. 1866 BECAUSE HE DID NOT
ALLEGEDLY TOUCHED IT IN HIS MEMORANDUM.
(pp. 106-107, Rollo)
After a painstaking review of the record and a deliberate consideration of the
arguments of accused-appellant, the Court does not find enough basis to reverse.
Accused-appellant claims that the trial court erred in failing to consider what
he says are material, substantial, important and significant discrepancies between
the affidavits of
622
622 SUPREME COURT REPORTS ANNOTATED
People vs. Valdez
prosecution witnesses and their testimonies in court. Accused-appellant points to
the Statement of William Montano, taken by SPO1 Mario Suratos on September
20, 1995 (Exhibit 1: p. 238, Record), and the Statement taken on September 24,
1995 (Exhibit 4: p. 291, Record), both in Villaflor Hospital, Dagupan City where
William Montano specifically named Bernard Castro as the person who flagged
down the motorized tricycle he and the other victims were riding. This, he claims,
is inconsistent with his testimony during the trial where he stated:
ATTY. RANCHEZ:
Q. Now, were you able to reach Sitio Cabauangan, Nalsian, Manaoag, Pangasinan?
A. No, sir.
Q. Why?
CRIMINAL LAW
A. When we were entering the road at Sitio Cabauangan at around ten to fifteen meters,
somebody plugged (sic) down the tricycle, sir.
Q. And what happened next after somebody plugged (sic) down your tricycle?
motorcycle, sir.
A. Somebody standing was lighted by the headlight of our
Q. Now, what happened next, if any?
A. The one who was standing and was lighted with the headlight was immediately
recognized by me, sir.
Q. Who was that person whom you saw and you immediately recognized?
A. That one, sir.
ACTG. INTERPRETER:
Witness pointing to a person wearing white t-shirt seated at the bench for the accused,
and when asked his name, he gave his name as Rolando Valdez.
(pp. 11-12, tsn, June 11, 1996)
We are not persuaded.
In his Statements dated September 20, 1995 (Exhibit 1) and September 24,
1995 (Exhibit 4), William Montano pointed
623
VOL. 304, MARCH 11, 1999 623
People vs. Valdez
to Bernard Castro as the person who flagged down the motorized tricycle ridden by
the victims. On November 8, 1995, William and his co-victim/survivor Randy Tibule
executed a “Pinagsamang Salaysay sa Pag-uurong ng Demanda” where they
disclaimed having seen Bernard Castro at the scene of the crime. They declared
that after a more thorough consideration of what transpired, they have realized
that the filing of the complaint against Bernard Castro was a mistake and the
result of misunderstanding or misapprehension of what actually happened. In his
testimony in court, William, however, identified accused-appellant as the person
illuminated by the headlight of the tricycle, for which reason William readily
recognized him. We, therefore, find nothing inconsistent between his declarations
during the investigation and his testimony in court. The lack of precision with
which he distinguished between the person who flagged down the tricycle and the
other person whom he recognized because of the headlight of the tricycle cannot be
considered as inconsistency at all. The same holds true with claimed discrepancies
between the statements of Randy Tibule during the investigation and his testimony
in court.
Accused-appellant stubbornly insists that following the withdrawal or
retraction of the accusation of several witnesses against Bernard Castro, these
same witnesses’ accusation against accused-appellant becomes doubtful.
We are not convinced.
In all the references by accused-appellant in pages 10-12 of his brief to the
sworn declarations of prosecution witnesses made during the investigation of the
| PENALTIES P a g e 82 | 279
case, Bernard Castro may have indeed been identified and named as one of the
gunmen. It may readily be noted in these very same references, however, that all
these prosecution witnesses referred to two other companions, then unidentified,
of Bernard Castro. Even in the Joint Affidavit (Exhibit “7”) referred to in page 11
of the brief, the police investigators categorically referred to “Bernard Castro y
Nazareno, alias Toti as one of the suspects or assailants involved in the shooting
incident” (p. 112, Rollo). The logical conclusion that may be drawn
624
624 SUPREME COURT REPORTS ANNOTATED
People vs. Valdez
therefrom is that there is at least one other assailant in addition to Bernard Castro,
and as it developed, accused-appellant was subsequently and positively named as
such. Withal, we cannot subscribe to accused-appellant’s ratiocination that if the
witnesses pointed to Bernard Castro as one of the perpetrators of the crime, then
it follows that accused-appellant cannot be one other and additional perpetrator
anymore. Accused-appellant’s reasoning on this point is absolutely flawed. It is
totally unacceptable.
Accused-appellant likewise seeks shelter in the mysterious withdrawal of the
victims’ charges against Bernard Castro. He insinuates that such recantation
should not have been given any consideration. But, this is water under the bridge.
Anyway, even in the remotest possibility that the retraction of the accusation
against Bernard Castro may be reversed, it does not get accused-appellant off the
hook. Considering that accused-appellant had himself been positively identified,
together with Bernard Castro, as one of the other perpetrators of the crime, his
conviction may still stand independently and regardless of whether or not Castro
is indicted or remains unprosecuted.
Accused-appellant further argues that it is not he but Castro who had the
motive to shoot and fire at the occupants of the motorized tricycle, mistaking one
of the occupants thereof for Isidro Capistrano, Castro’s former classmate and with
whom he earlier had an altercation. It is very clear in his brief, however, that
accused-appellant predicates this argument on the mistaken premise that he was
not positively identified in the case at bar although he admits that it is established
that he was at the scene of the crime (p. 114, Rollo). This argument will not hold
simply because it is settled that accused-appellant had been positively identified
by eyewitnesses and victims William Montano and Randy Tibule. It is basic and
fundamental rule that proof of motive is necessary for conviction only when there
is doubt as to the identity of the accused, not when accused has been positively
identified as in the present case (People vs. Caggauan, 94 Phil. 118 [1953]; People
vs. Realon, 99 SCRA 422 [1980]; People vs.
625
VOL. 304, MARCH 11, 1999 625
People vs. Valdez
Pano, 257 SCRA 274 [1996]). Besides, it is also to be noted that lack of motive for
committing the crime does not preclude conviction, considering that, nowadays, it
is a matter of judicial knowledge that persons have killed or committed serious
offense for no reason at all (People vs. Cabodoc, 263 SCRA 187 [1996]).
CRIMINAL LAW | PENALTIES
Accused-appellant further contends that the prosecution’s deliberate and
intentional failure to present the investigating police officers and their Joint
Affidavit (Exhibit “7”) constitutes culpable suppression of evidence which, if duly
taken into account, will merit his acquittal.
The argument is puerile, simply because the defense itself was able to present
the police officers and Exhibit “7” (p. 116, Rollo). It is to be further noted that as
earlier pointed out, the declaration of SPO1 Suratos and SPO1 Carbonel did not
categorically rule out the possibility of convicting other persons as co-principals of
Castro. On the contrary, it is clear from such affidavit that there was more than
just one perpetrator of the crime. It even confirms and corroborates the eyewitness
accounts of William Montano and Randy Tibule pointing to accused-appellant as
one of the other companions of Castro.
After meticulously and carefully going through each and every piece of evidence
on record, the Court finds no reason to depart from the trial court’s accord of
credence to the eyewitness accounts of William Montano and Randy Tibule who
positively identified accused-appellant as one of the persons who shot and fired at
them and their companions that fateful night. We agree with the trial court that
the evidence points beyond reasonable doubt that accused-appellant was one of
those principally responsible for the deaths of the four victims in this case and the
wounding of two others. There is also sufficient evidence that the aggravating
circumstance of treachery attended the killings, thus, qualifying the same to
murder.
Under paragraph 16, Article 14 of the Revised Penal Code, the qualifying
circumstance of treachery is present when the offender employs means, methods,
or forms in the execution of the crime which tend directly and especially to ensure
its
626
626 SUPREME COURT REPORTS ANNOTATED
People vs. Valdez
execution without risk to himself arising from any defensive or retaliatory act
which the victim might make (People vs. Santos, 270 SCRA 650 [1997]). The settled
rule is that treachery can exist even if the attack is frontal if it is sudden and
unexpected, giving the victim no opportunity to repel it or defend himself against
such attack. What is decisive is that the execution of the attack, without the
slightest provocation from the victim who is unarmed, made it impossible for the
victim to defend himself or to retaliate (People vs. Javier, 269 SCRA 181 [1997]).
The trial court ruled that evident premeditation is likewise present. After
reviewing the evidence, however, we do not find any showing of evident
premeditation on the part of accused-appellant. While there may be testimonial
evidence pointing to an altercation between Bernard Castro and a certain
Capistrano, it does not sufficiently prove the attendance of the aggravating
circumstance of evident premeditation. It is not enough that evident premeditation
is suspected or surmised, but criminal intent must be evidenced by notorious
outward acts evidencing determination to commit the crime. In order to be
considered an aggravation of the offense, the circumstance must not merely be
P a g e 83 | 279
“premeditation”; it must be “evident premeditation” (People vs. Torejas, 43 SCRA
158 [1972]).
To establish the existence of evident premeditation, the following have to be
proved: (1) the time when the offender determined to commit the crime; (2) an act
manifestly indicating that the offender had clung to his determination; and (3)
sufficient lapse of time between the determination and the execution to allow the
offender to reflect on the consequences of his act (People vs. Juan, 254 SCRA
478 [1996]).
Establishing a basis or motive for the commission of the crime does not
constitute sufficient ground to consider the existence of evident premeditation. At
best, it may indicate the time when the offenders determined to commit the crime
(the first element). Their act of arming themselves with caliber .30 carbines and
thereafter waiting for their supposed victims at ambush positions may have also
indicated that they
627
VOL. 304, MARCH 11, 1999 627
People vs. Valdez
clung to their determination to commit the crime (the second element). More
important than these two elements is the proof that a sufficient period of time had
elapsed between the outward act evidencing intent and actual commission of the
of-fense (the third element). There must have been enough opportunity for the
initial impulse to subside. This element is indispensable for circumstance of evident
premeditation to aggravate the crime. In People vs. Canial, 46 SCRA 134 [1972],
this Court reiterates:
In other words, this circumstance can be taken into account only when there had
been a cold and deep meditation, and a tenacious persistence in the
accomplishment of the criminal act. There must be ‘an opportunity to coolly and
serenely think and deliberate on the meaning and the consequences of what they
had planned to do, an interval long enough for the conscience and better judgment
to overcome the evil desire and scheme . . . . (p. 649)
As early as in People vs. Durante, 53 Phil. 363 [1929], the Court had stressed the
importance of sufficient time between the criminal act and the resolution to carry
out the criminal intent, affording such opportunity for cool thought and reflection
to arrive at a calm judgment. Obviously, this element is wanting in the case at bar.
Right after the supposed heated argument between Bernard Castro and
Capistrano, Castro and company went home to get the firearms and not long
thereafter mounted the assault. There was no chance for the anger to subside. The
culprits in the case at bar had no opportunity for cool thought and reflection to
arrive at a calm judgment.
The other aggravating circumstance considered by the trial court is that of
abuse of superior strength. This contravenes the very basic and elementary
doctrine in our jurisdiction that the aggravating circumstance of abuse of superior
strength is absorbed in treachery (People vs. Mobe, 81 Phil. 58 [1948]; People vs.
Nierra, 96 SCRA 1 [1980]; People vs. Torrefiel, 256 SCRA 369 [1996]).
628
628 SUPREME COURT REPORTS ANNOTATED
CRIMINAL LAW | PENALTIES
People vs. Valdez
Notwithstanding the absence of any aggravating circumstances, if we were to
uphold the trial court’s premises on the complex nature of the crime committed, the
death sentence, being the maximum penalty for murder, would still have been the
imposable penalty under Article 48 of the Revised Penal Code. The Court however,
finds compelling reasons to reduce the sentence from one death penalty (for the
complex crime of multiple murder with double frustrated murder) and
one reclusion perpetua (for the crime of illegal possession of firearms and
ammunitions) to four counts of reclusion perpetua (for 4 murders) and two
indeterminate sentences of prision mayor to reclusion temporal (for the 2
frustrated murders).
The recommendation of the Solicitor General in the People’s brief that accused-
appellant should instead be convicted of four counts of murder and two counts of
frustrated murder is well taken.
The trial court erred when it allowed itself to be carried away by the erroneous
Information filed by the Office of the Provincial Prosecutor of Pangasinan charging
the complex crime of multiple murder and double frustrated murder (p. 1, Record:
Crim. Case No. U-8747). It may be noted that in his Resolution dated September
26, 1995, the investigating municipal trial court judge of Manaoag, Pangasinan,
found a prima facie case for four separate counts of murder (pp. 101-102, Ibid.).
Too, the same investigating judge in his Resolution dated October 31, 1995 found
a prima facie case for two counts of frustrated murder (pp. 43-44, Ibid.). It was upon
reinvestigation by the Office of the Provincial Prosecutor of Pangasinan that a case
for the complex crime of murder with double frustrated murder was instead filed
per its Joint Resolution dated November 17, 1995 (pp. 4-6, Ibid.).
The concept of a complex crime is defined in Article 48 of the Revised Penal
Code, to wit:
ART. 48. Penalty for complex crimes.—When a single act constitutes two or more
grave or less grave felonies or when an offense is a necessary means for committing
the other, the penalty
629
VOL. 304, MARCH 11, 1999 629
People vs. Valdez
for the most serious crime shall be imposed, the same to be applied in its maximum
period. (As amended by Act No. 4000.)
The case at bar does not fall under any of the two instances defined above. The
Office of the Provincial Prosecutor of Pangasinan erroneously considered the case
as falling under the first. It is clear from the evidence on record, however, that the
four crimes of murder resulted not from a single act but from several individual
and distinct acts. For one thing, the evidence indicates that there was more than
one gunman involved, and the act of each gunman is distinct from that of the other.
It cannot be said therefore, that there is but a single act of firing a single firearm.
There were also several empty bullet shells recovered from the scene of the crime.
This confirms the fact that several shots were fired. Furthermore, considering the
relative positions of the gunmen and their victims, some of whom were riding the
motorized tricycle itself while the others were seated inside the sidecar thereof, it
P a g e 84 | 279
was absolutely impossible for the four victims to have been hit and killed by a single
bullet. Each act by each gunman pulling the trigger of their respective firearms,
aiming each particular moment at different persons constitute distinct and
individual acts which cannot give rise to the complex crime of multiple murder. We
therefore rule that accused-appellant is guilty, not of a complex crime of multiple
murder, but of four counts of murder for the death of the four victims in this case.
In the same manner, accused-appellant is likewise held guilty for two counts of
frustrated murder.
Article 248 of the Revised Penal Code, as amended, provides the penalty
of reclusion perpetua to death for the crime of murder. Without any mitigating or
aggravating circumstance attendant in the commission of the crime, the medium
penalty is the lower indivisible penalty of reclusion perpetua. In the case at bar,
accused-appellant, being guilty of four separate counts of murder, the proper
penalty should be four sentences of reclusion perpetua. In addition, he being guilty
of two counts of frustrated murder, accused-appellant must be meted out an
indeterminate sentence ranging from a mini-
630
630 SUPREME COURT REPORTS ANNOTATED
People vs. Valdez
mum of 6 years and 1 day of prision mayor to a maximum of 12 years and 1 day
of reclusion temporal for each offense. Now, to the matter of accused-appellant’s
conviction for illegal possession of unlicensed firearm under Presidential Decree
No. 1866. It was recently held in the case entitled People vs. Molina (G.R. Nos.
115835-36, July 22, 1998), and reiterated in People vs. Feloteo (G.R. No. 124212,
September 17, 1998), that there can be no separate conviction of the crime of illegal
possession of firearms under Presidential Decree No. 1866 in view of the
amendments introduced by Republic Act No. 8294.
Instead, illegal possession of firearms is merely to be taken as an aggravating
circumstance per Section 1 of Republic Act No. 8294, which in part, provides:
If homicide or murder is committed with the use of unlicensed firearm, such use of
an unlicensed firearm shall be considered as an aggravating circumstance.
Republic Act No. 8294 took effect on July 6, 1997, fifteen days after its publication
on June 21, 1997. The crimes involved in the case at bar were committed on
September 17, 1995. As in the case of any penal law, the provisions of Republic Act
No. 8294 will generally have prospective application. In cases, however, where the
new law will be advantageous to the accused, the law may be given retroactive
application (Article 22, Revised Penal Code). Insofar as it will spare accused-
appellant in the case at bar from a separate conviction for the crime of illegal
possession of firearms, Republic Act No. 8294 may be given retroactive application
in Criminal Case No. U-8749 (for Illegal Possession of Firearm) subject of this
present review.
As a word of caution, however, the dismissal of the present case for illegal
possession of firearm should not be misinterpreted as meaning that there can no
longer be any prosecution for the crime of illegal possession of firearm. In general,
all pending cases involving illegal possession of firearm should continue to be
prosecuted and tried if no other crimes
CRIMINAL LAW | PENALTIES
631
VOL. 304, MARCH 11, 1999 631
People vs. Valdez
expressly indicated in Republic Act No. 8294 are involved (murder or homicide
under Section 1, and rebellion, insurrection, sedition or attempted coup
d’etat under Section 3).
However, the use of an unlicensed firearm in the case at bar cannot be
considered as a special aggravating circumstance in Criminal Case No. U-8747 (for
Complex Crime of Multiple Murder), also under review herein, because it will
unduly raise the penalty for the four counts of murder from four reclusion
perpetua to that of four-fold death. Insofar as this particular provision of Republic
Act No. 8294 is not beneficial to accused-appellant because it unduly aggravates
the crime, this new law will not be given retroactive application, lest it might
acquire the character of an ex-post facto law.
WHEREFORE, premises considered, the decision with respect to Criminal
Case No. U-8747 is hereby MODIFIED. Accused-appellant is found guilty beyond
reasonable doubt of four counts of murder and hereby sentenced to suffer the
penalty of four sentences of reclusion perpetua. He is also found guilty beyond
reasonable doubt of two counts of frustrated murder and hereby meted two
indeterminate sentences, each, ranging from six (6) years and one (1) day of prision
mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal, as
maximum. The appealed judgment relating to the civil liabilities of accused-
appellant towards the six victims is AFFIRMED.
Criminal Case No. U-8749 involving Presidential Decree No. 1866 is hereby
dismissed.
No special pronouncement is made as to costs.
SO ORDERED.
Davide,
Jr. (C.J.), Romero, Bellosillo, Puno, Vitug, Kapunan, Quisumbing, Purisima, Pard
o, Buena and GonzagaReyes, JJ., concur.
Mendoza and Panganiban, JJ., In the result.
632
632 SUPREME COURT REPORTS ANNOTATED
Salva vs. Court of Appeals
Judgment modified.
Note.—Consistent with the doctrine that an appeal in a criminal case throws
the whole case open for review, the appellate court may, applying the new law
(Republic Act No. 8294), additionally impose a fine, which if unpaid, will subject
the convict to subsidiary imprisonment, pursuant to Art. 39 of the Revised Penal
Code. (Gonzales vs. Court of Appeals, 277 SCRA 518 [1997])
——o0o——
[Nos. 25375, 25376. October 8, 1926]
P a g e 85 | 279
 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and ap
pellee, vs. VICENTE DE LEON Y FLORA, defendant and appellant.
1. 1.CRIMINAL LAW; THEFT; HABITUAL DELINQUENT; PENALTY.—
The accused in the instant case was convicted of the crime of theft,
having taken two game roosters belonging to different owners, and being
an habitual delinquent, in accordance with the provisions of Act No.
3062, an additional penalty consisting of half the penalty provided for
the crime committed must be imposed upon him. (People vs. Aguinaldo,
47 Phil., 728; People vs. Espiritu, R. G. No. 24753, promulgated
December 31, 1925, not reported.)
1. 2.ID. ; ID.—The act of taking two roosters in the same place and on the
same occasion cannot give rise to two crimes having an independent
existence of their own, because there are not two distinct appropriations
nor two intentions that characterize two separate crimes. (Decision of the
Supreme Court of Spain of June 13, 1894.)
1. 3.ID. ; ID.—It is not an element of the crime of theft that the culprit know
the owner of the thing stolen, the crime being consummated provided the
thing stolen belongs to another and the same is taken with intent to gain.
Neither is it necessary for the existence of the crime of theft that it should
appear in a specific manner who is the owner of the thing stolen, because
the law does not require it, nor does it affect the criminal liability, but
only the restitution or indemnification of damages, which are merely of
a civil nature. (Decisions of the Supreme Court of Spain of November 22,
1898 and October 4, 1905.)
1. 4.ID. ; ID.—The doctrine laid down in the case of United States vs. Balaba
(37 Phil., 260), is not applicable to the present case, as two separate
complaints have been filed herein against the accused, but the trial court
convicted him in the two cases, considering the facts alleged in the two
complaints as constituting but one crime.
APPEAL from a judgment of the Court of First Instance of Manila. Diaz, J.
The facts are stated in the opinion of the court.
Modesto Reyes for appellant.
Attorney-General Jaranilla for appellee.
438
438 PHILIPPINE REPORTS ANNOTATED
People vs. De Leon
VlLLAMOR, J.:
CRIMINAL LAW | PENALTIES
Early in the morning of December 21, 1925, Vicente de Leon y Flora entered the
yard of Vicente Magat's house on Domingo Santiago Street, Manila, and without
violence or intimidation against persons nor force upon things, took, with intent to
gain, two game roosters which were in the yard, one with colored plumage valued
at P8 belonging to Diego Magat, and the other with white plumage and black spots,
valued at P10, belonging to Ignacio Nicolas.
Vicente de Leon y Flora was prosecuted in the municipal court for two crimes
of theft, one the theft of Magat's rooster and the other that of Nicolas'. Upon being
arraigned, the accused pleaded guilty and was sentenced by the municipal court in
each case to suffer the penalty of three years, six months and one day presidio
correccional, to return the stolen roosters to their respective owners and to pay the
costs in both cases. The accused appealed from this judgment .to the Court of First
Instance, and, upon being arraigned again upon the same informations, pleaded
not guilty in both cases, which were tried jointly by agreement of the parties
approved by the court.
In view of the evidence, the trial court found the accused guilty of one crime of
theft, holding that the theft of the two roosters constituted but one crime, and
taking into consideration the circumstance that the accused is an habitual
delinquent sentenced him in said two cases to the penalty of three years, six months
and one day presidio correccional and to pay the costs in case R. G. No. 25375,
declaring the costs in case No. 25376, de oficio without the obligation to indemnify,
as the roosters were returned to their respective owners. The accused appealed to
this court and his counsel alleges that the trial court erred: (a) In holding that the
guilt of the accused was proven by his own admission; (b) in not giving him the
benefit of reasonable doubt, and (c) in sentencing instead of acquitting the accused,
with the costs de oficio.
439
VOL. 49, OCTOBER 8, 1926 439
People vs. De Leon
We have reviewed the evidence and find no grounds to support the contention of
the appellant. We are of the opinion, and so hold, that the guilt of the accused in
the present case is proven beyond a reasonable doubt. The case falls under the
provisions of paragraph 5 of article 518 of the Penal Code, amended by section 1 of
Act No. 3244, in connection with paragraph 3 of article 520 of the same Code. The
penalty provided in the law is that of presidio correccional in its full extent, and
there having been present the aggravating circumstance of nocturnity, the penalty
must be imposed upon the accused in its maximum degree, or four years, two
months and one day presidio correccional. The accused being an habitual
delinquent, under Act No. 3062 an additional penalty must be imposed upon him
consisting of half the penalty provided for the crime committed, or 2 years and 1
month presidio correccional. (People vs. Aguinaldo, 47 Phil., 728;
People vs. Espiritu, R. G. No. 24753 1).
We could stop right here, but the Attorney-General raises a question in his brief
which we believe it is necessary for us to resolve now, due to the fact that it is not
only important to our jurisprudence, but also to the due prosecution of violators of
the law. The Attorney-General urges that the penalty for two crimes of theft be
P a g e 86 | 279
imposed upon the accused for each of the stolen roosters. The question, then, to
determine is whether or not the fact that the accused, with intent to gain, on the
same occasion and in the same place, took the two roosters, one belonging to Vicente
Magat and the other to Ignacio Nicolas, constitutes two crimes of theft.
It will be remembered that article 517 of the Penal Code contains three
paragraphs enumerating the acts which constitute the crime of theft The first
defines theft in general; the second declares a particular act to be theft which is not
included in the description in the first par-
_______________
1Promulgated December 31, 1925, not reported.
440
440 PHILIPPINE REPORTS ANNOTATED
People vs. De Leon
agraph, and the third also considers theft a series of acts with similar
characteristics to the general type, with the exceptions therein noted.
Article 517 of the Penal Code reads as follows:
"ART. 517. The following are guilty of theft:
1. "1.Any person who, with intent to gain, but without the use of violence or
intimidation against any person or the use of force upon anything, shall
take anything which is the personal property of another without the
latter's consent.
2. "2.Any person who, having found anything which has been lost, shall with
knowledge of its ownership appropriate the same with intent of gain.
3. "3.Any person guilty of malicious damage who shall remove or make use
of the things damaged, subject to the exceptions established by
paragraphs one, two, and three of article five hundred and ninety-two;
paragraph one of article five hundred and ninety-three; paragraph one of
article five hundred and ninety-five, and articles five hundred and
ninety-six, five hundred and ninety-eight, and six hundred and three."
As may be seen, the act of taking another's property without violence or
intimidation against persons, nor force upon things, with intent to gain and without
the consent of its owner, is what constitutes the crime of theft, as described in the
first paragraph of article 517.
The crime of theft is an offense against personal property and what is punished
is the alarm caused in the community by the perpetration of the act which is
violative of the individual rights guaranteed by the law, as well as the damage that
said act may occasion to the members of the community. Under sound principles,
the act of taking the two roosters, in response to the unity of thought in the criminal
purpose on one occasion, is not susceptible of being modified by the accidental
circumstance that the article unlawfully taken belonged to two distinct persons.
There is no series of acts here for the accomplish-
441
CRIMINAL LAW | PENALTIES
VOL. 49, OCTOBER 8, 1926 441
People vs. De Leon
ment of different purposes, but only of one which was consummated, and which
determines the existence of only one crime. The act of taking the roosters in the
same place and on the same occasion cannot give rise to two crimes having an
independent existence of their own, because there are not two distinct
appropriations nor two intentions that characterize two separate crimes.
The Supreme Court of Spain, in its decision of July 13, 1894, said:
"The act of unlawfully taking two colts, two cows and two calves on one night,
belonging to four owners, which livestock was found in various adjacent and open
meadows, constitutes only one crime of theft, because the fact that the persons
injured by the taking of the cattle by the accused were several, said accused
knowing that the meadows in which this livestock was found were open and
adjacent, it being easy to pass from one to the other, does not authorize the legal
conception that the said accused committed four thefts on said night, but only one
as found by the lower court, which did not commit an error of law by holding that
the acts were committed on a single occasion."
It is not an element of the crime of theft that the culprit know the owner of the
thing stolen, the crime being consummated provided the thing stolen belongs to
another and the same is taken with intent to gain. (Decision of the Supreme Court
of Spain of November 22, 1898.) Neither is it necessary for the existence of the
crime of theft that it should appear in a specific manner who the owner is of the
thing stolen, because the law does not require it nor does it affect the criminal
liability, but only the restitution or indemnification of damages, which are merely
of a civil nature. (Decision of the Supreme Court of Spain, October 4, 1905.) What
constitutes the crime of theft is the taking of another's property with intent to gain,
without the consent of the owner, so that after the unlawful act of taking another's
property is proven, it is evident that all the elements mentioned in the first par-
442
442 PHILIPPINE REPORTS ANNOTATED
People vs. De Leon
agraph of article 517 of the Penal Code exist. Therefore, we are of the opinion that
the unity of the intention to take a thing belonging to another on one occasion and
in the same place, constitutes the commission of only one crime of theft; and the
fact that the things taken belong to different persons does not produce a
multiplicity of crimes, which must be punished separately.
In arriving at this conclusion, we have not lost sight of the doctrine laid down
in United States vs. Balaba (37 Phil., 260), according to which, where the accused
made no objection to the information on the ground that it charged more than one
offense, the prosecution properly submitted evidence as to the commission of each
and all of the offenses charged; and the trial court also properly entered judgment
of conviction of each and all of these offenses which were established by the
introduction of competent evidence at the trial and should, therefore, have imposed
the prescribed penalties for each and all of the offenses of which the accused was
convicted in accordance with the provisions of article 87 of the Penal Code. This
doctrine, however, is not applicable to the present case as two separate complaints
P a g e 87 | 279
have been filed herein against the accused, but the trial court convicted the accused
in the two cases, considering the facts alleged in the said complaints as constituting
but one crime.
In American cases the same doctrine is maintained as in Spanish decisions in
regard to the question which is here debated:
In Corpus Juris, vol. 36, page 799, it is said in regard to the taking of articles
belonging to two different owners at the same time and place: "In a few jurisdictions
the rule obtains that if two or more articles belonging to different owners are stolen
at the same time and place, the theft of the property of each owner is a separate
crime and may be prosecuted as such." (U. S. vs. Beerman, 24 Fed. Cas. No. 14,560;
5 Cranch C. C., 412; State vs. Thurston 27 S. C. L., 382; Morton vs. State, 1 Lea
[Tenn.] 498.)
443
VOL. 49, OCTOBER 8, 1926 443
People vs. De Leon
In other jurisdiction it is held that such a theft may be prosecuted, at the pleasure
of the State, either as one offense or as several distinct offenses.
(Bushman vs. Com., 138 Mass., 507; Com. vs. Sullivan, 104 Mass.,
552; State vs. Douglas, 26 Nev., 196; 65 Pac., 802; 99 Am. St,
688; State vs. Lambert, 9 Nev., 321.) But the prevailing rule is that if several
articles, stored in the same place, are taken by a single larcenous act, the mere fact
that some of them belonged to one person and some to another does not dissolve
the act into separate crimes. (Ala.-Clemm vs. State, 154 Ala., 12; 45 So., 212; 129
Am. St., 17; D. C.-Chanock vs. U. S., 50 App., 54; 267 Fed., 612; Hoiles vs. U. S., 10
D. C., 370; 36 Am. Rep., 106; Ga.-Lowe vs. State, 57 Ga., 171; Dean vs. State, 9 Ga.
A., 571; 71 South East, 932; Ill.-Peo. vs. Israel, 269 111., 284; 109 North East,
969; Ind.-Furnace vs. State, 153 Ind., 93; 54 North East, 441; Bell vs. State, 42
Ind., 335; lowa-State vs. Sampson, 157 lowa, 257; 138 North West, 473; 42 Law.
Rep. An. [N.S.], 967; State vs. Congrove, 109 lowa, 66; 80 North West,
227; State vs. Larson, 85 lowa, 659; 52 North West, 539; Ky.-Nichols vs. Com., 78
Ky., 180; Md.-State vs. Warren, 77 Md., 121; 26 Atl. Rep., 500; 39 Am. St.,
401; Mich.-Peo. vs. Johnson, 81 Mich., 573; 45 North West, 1119; Miss.-
State vs. Quintini, 51 So., 276; Dalton vs. State, 91 Miss., 162; 44 So., 802; 124 Am.
St., 637; Ward vs. State, 90 Miss., 249; 43 So., 466; Mo.-State vs. Morphin, 37 Mo.,
373; Lorton vs. State, 7 Mo., 55; 37 Am. Dec., 179; Mont.-State vs. Mjelde, 29 Mont,
490; 75 Pac., 87; N. H.-State vs. Merrill, 44 N. H., 624; N. M.-State vs. Klasner, 19
N. M., 474; 145 Pac., 679; Ann. Cas. 1917-D, 824; N. C.-State vs. Simons, 70 N. C.,
336; Oh.-State vs. Hennessey, 23 Oh. St., 339, 13 Am. Rep., 253; State vs. Smith,
10 Oh. Dec. (Reprint), 682; 23 CincLBul., 85; Or.-State vs. Clark, 46 Or., 140; 80
Pac., 101; Pa.-Fulmer vs. Com., 97 Pa., 503; Com. vs. Lent, 15 Pa. Dist., 884; S. D.-
State vs. Kieffer, 17 S. D., 67; 95 North West, 289; Tex.-Wilson vs. State, 45 Tex.,
76; 23 Am. Rep., 602; Hudson vs. State', 9 Tex. A., 151, 35 Am. Rep.,
444
444 PHILIPPINE REPORTS ANNOTATED
People vs. Bretaña
CRIMINAL LAW | PENALTIES
732; Addison vs. State, 3 Tex. A., 40 Utah-State vs. Mickel, 23 Utah, 507; 65 Pac.,
484; Vt.-State vs. Blay, 77 Vt., 56; 58 Atl. Rep., 794; State vs. Emery, 68 Vt., 109;
34 Atl. Rep., 432; 54 Am. St, 878; State vs. Newton, 42 Vt., 537; Va.-
Alexander vs. Com., 90 Va., 809; 20 South East, 782; Wash.-State vs. Laws, 61
Wash., 533; 112 Pac., 488; State vs. Butts, 42 Wash., 455; 85 Pac., 33;
Terr. vs. Heywood, 2 Wash., 180; 2 Pac., 189; Wyo.-Ackerman vs. State, 7 Wyo.,
504; 54 Pac., 228; Eng.-Reg. vs. Bleasdale, 2 C. & K, 765; 61 Eng. C. L., 765.)
For the foregoing, the judgment appealed from must be, as is hereby, modified
and the accused Vicente de Leon y Flora is sentenced to suffer the penalty of six
years and three months presidio mayor, with the accessories of the law, and to pay
the costs. So ordered.
Avanceña, C. J., Johnson, Street, Ostrand, Romualdez, and Villa-Real,
JJ., concur.
Johns, J., concurs in the result.
Judgment modified; penalty increased.
_______________
VOL. 234, JULY 29, 1994 555
People vs. Simon
G.R. No. 93028. July 29, 1994.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MARTIN SIMON
y SUNGA,** respondent.
Criminal Law; Dangerous Drugs Act; Evidence; To sustain a conviction for
selling prohibited drugs, the sale must be clearly and unmistakably established.—
To sustain a conviction for selling prohibited drugs, the sale must be clearly and
unmistakably established. To sell means to give, whether for money or any other
material consideration. It must, therefore, be established beyond doubt that
appellant actually sold and delivered two tea bags of marijuana dried leaves to Sgt.
Lopez, who acted as the poseur-buyer, in exchange for two twenty-peso bills.
_______________
* EN BANC.
** This case was initially raffled to the Second Division of the Court but due
to the novelty and importance of the issues raised on the effects of R.A. No. 7659 in
amending R.A. No. 6425, the same was referred to and accepted by the Court en
banc pursuant to Circular No. 2-89 and Bar Matter No. 209, as amended.
556
556 SUPREME COURT REPORTS ANNOTATED
People vs. Simon
Same; Same; Same; The practice of entrapping drug traffickers through the
utilization of poseur-buyers is susceptible to mistake, harassment, extortion and
abuse.—We are aware that the practice of entrapping drug traffickers through the
utilization of poseur-buyers is susceptible to mistake, harassment, extortion and
P a g e 88 | 279
abuse. Nonetheless, such causes for judicial apprehension and doubt do not obtain
in the case at bar. Appellant’s entrapment and arrest were not effected in a
haphazard way, for a surveillance was conducted by the team before the buy-bust
operation was effected. No ill motive was or could be attributed to them, aside from
the fact that they are presumed to have regularly performed their official duty.
Such lack of dubious motive coupled with the presumption of regularity in the
performance of official duty, as well as the findings of the trial court on the
credibility of witnesses, should prevail over the self-serving and uncorroborated
claim of appellant of having been framed, erected as it is upon the mere shifting
sands of an alibi.
Same; Same; Same; The corpus delicti of the crime has been fully proved with
certainty and conclusiveness.—When the drug seized was submitted to the Crime
Laboratory Service of the then Philippine Constabulary-Integrated National Police
(PC-INP) at Camp Olivas for examination, P/Cpl. Marlyn Salangad, a forensic
chemist therein, confirmed in her Technical Report No. NB-448-88 that the
contents of the four tea bags confiscated from appellant were positive for and had
a total weight of 3.8 grams of marijuana. Thus, the corpus delicti of the crime had
been fully proved with certainty and conclusiveness.
Same; Same; Same; Witnesses; Minor error or discrepancy neither impairs
the essential integrity of the prosecution evidence as a whole nor reflects on the
witness’ honesty.—Even, assuming arguendo that the prosecution committed an
error on who actually seized the marijuana from appellant, such an error or
discrepancy refers only to a minor matter and, as such, neither impairs the
essential integrity of the prosecution evidence as a whole nor reflects on the
witnesses’ honesty.
Same; Same; Same; No law or jurisprudence requires that an arrest or
seizure, to be valid, be witnessed by a relative, a barangay official or any other
civilian or be accompanied by the taking of pictures.—Again, appellant contends
that there was neither a relative of his nor any barangay official or civilian to
witness the seizure. He decries the lack of pictures taken before, during and after
his arrest. Moreover, he was not reported to or booked in the custody of
any barangay official or police authorities. These are absurd disputations. No law
or jurisprudence requires that an arrest or seizure, to be valid,
557
VOL. 234, JULY 29, 1994 557
People vs. Simon
be witnessed by a relative, a barangay official or any other civilian, or be
accompanied by the taking of pictures.
Same; Same; Same; Constitutional Law; Court finds and declares the exhibits
inadmissible in evidence.—However, we find and hereby declare the
aforementioned exhibits inadmissible in evidence. Appellant’s conformance to
these documents are declarations against interest and tacit admissions of the crime
charged. They were obtained in violation of his right as a person under custodial
investigation for the commission of an offense, there being nothing in the records
to show that he was assisted by counsel. Although appellant manifested during the
custodial investigation that he waived his right to counsel, the waiver was not made
CRIMINAL LAW | PENALTIES
in writing and in the presence of counsel, hence whatever incriminatory admission
or confession may be extracted from him, either verbally or in writing, is not
allowable in evidence.
Same; Same; Same; Same; The commission of the offense of illegal sale of
prohibited drugs requires merely the consummation of the selling transaction.—
Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot
thereby be extricated from his predicament since his criminal participation in the
illegal sale of marijuana has been sufficiently proven. The commission of the offense
of illegal sale of prohibited drugs requires merely the consummation of the selling
transaction which happens the moment the buyer receives the drug from the seller.
In the present case, and in light of the preceding discussion, this sale has been
ascertained beyond any peradventure of doubt.
Same; Same; Same; Drug-pushing when done on a small scale belongs to that
class of crimes that may be committed at any time, and in any place.—Appellant
then asseverates that it is improbable that he would sell marijuana to a total
stranger. We take this opportunity to once again reiterate the doctrinal rule that
drug-pushing, when done on a small scale as in this case, belongs to that class of
crimes that may be committed at any time and in any place. It is not contrary to
human experience for a drug pusher to sell to a total stranger, for what matters is
not an existing familiarity between the buyer and seller but their agreement and
the acts constituting the sale and delivery of the marijuana leaves.
Same; Same; Penalties; Court holds that in the instant case the imposable
penalty under Republic Act No. 6425 as amended by Republic Act No. 7659 is
prision correccional.—For the nonce, we hold that in the instant case the imposable
penalty under Republic Act No. 6425, as
558
558 SUPREME COURT REPORTS ANNOTATED
People vs. Simon
amended by Republic Act No. 7659, is prision correccional, to be taken from
the medium period thereof pursuant to Article 64 of the Revised Penal Code, there
being no attendant mitigating or aggravating circumstance.
DAVIDE, JR.,J., Concurring and Dissenting Opinion
Criminal Law; Dangerous Drugs Act; Evidence; The mere use by a special law
of a penalty found in the Revised Penal Code can by no means make an offense
thereunder an offense “punished or punishable” by the Revised Penal Code.—It is
thus clear that an offense is punished by the Revised Penal Code if both its
definition and the penalty therefor are found in the said Code, and it is deemed
punished by a special law if its definition and the penalty therefor are found in the
special law. That the latter imports or borrows from the Revised Penal Code its
nomenclature of penalties does not make an offense in the special law punished
by or punishable under the Revised Penal Code. The reason is quite simple. It is
still the special law that defines the offense and imposes a penalty therefor,
although it adopts the Code’s nomenclature of penalties. In short, the mere use by
a special law of a penalty found in the Revised Penal Code can by no means make
P a g e 89 | 279
an offense thereunder an offense “punished or punishable” by the Revised Penal
Code. APPEAL from a judgment of the Regional Trial Court of Guagua, Pampanga,
Br. 51.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Ricardo M. Sampang for accused-appellant.
REGALADO,J.:
Herein accused-appellant Martin Simon y Sunga was charged on November 10,
1988 with a violation of Section 4, Article II of Republic Act No. 6425, as amended,
otherwise known as the Dangerous Drugs Act of 1972, under an indictment alleging
that on or about October 22, 1988, at Barangay Sto. Cristo, Guagua, Pampanga, he
sold four tea bags of marijuana to a Narcotics Command (NARCOM) poseur-buyer
in consideration of the sum of P40.00, which tea bags, when subjected to laboratory
559
VOL. 234, JULY 29, 1994 559
People vs. Simon
examination, were found positive for marijuana.1
Eventually arraigned with the assistance of counsel on March 2, 1989, after his
rearrest following his escape from Camp Olivas, San Fernando, Pampanga where
he was temporarily detained,2 he pleaded not guilty. He voluntarily waived his
right to a pre-trial conference,3 after which trial on the merits ensued and was duly
concluded.
I
The evidence on record shows that a confidential informant, later identified as a
NARCOM operative, informed the police unit at Camp Olivas, San Fernando,
Pampanga, of the illegal drug activities of a certain “Alyas Pusa” at Sto. Cristo,
Guagua, Pampanga. Capt. Francisco Bustamante, Commanding Officer of the 3rd
Narcotics Regional Unit in the camp, then formed a buy-bust team composed of
Sgt. Buenaventura Lopez, Pfc. Virgilio Villaruz and Sgt. Domingo Pejoro, all
members of the same unit. After securing marked money from Bustamante, the
team, together with their informant, proceeded to Sto. Cristo after they had
coordinated with the police authorities and barangay officers thereof. When they
reached the place, the confidential informer pointed out appellant to Lopez who
consequently approached appellant and asked him if he had marijuana. Appellant
answered in the affirmative and Lopez offered to buy two tea bags. Appellant then
left and, upon returning shortly thereafter, handed to Lopez two marijuana tea
bags and Lopez gave him the marked money amounting to P40.00 as payment.
Lopez then scratched his head as a pre-arranged signal to his companions who were
stationed around ten to fifteen meters away, and the team closed in on them.
Thereupon, Villaruz, who was the head of the back-up team, arrested appellant.
The latter was then brought by the team to the 3rd Narcotics Regional Unit at
Camp Olivas on board a jeep and he was placed under custodial investigation, with
Sgt.
CRIMINAL LAW | PENALTIES
_______________
1 Original Record, 2; Criminal Case No. G-2320, Regional Trial Court, Branch
51, Guagua, Pampanga.
2 Ibid., 11.
3 Ibid., 23.
560
560 SUPREME COURT REPORTS ANNOTATED
People vs. Simon
Pejoro as the investigator.4
Pfc. Villaruz corroborated Lopez’ testimony, claiming that he saw the deal that
transpired between Lopez and the appellant. He also averred that he was the one
who confiscated the marijuana and took the marked money from appellant.5
Sgt. Domingo Pejoro, for his part, declared that although he was part of the
buy-bust team, he was stationed farthest from the rest of the other members, that
is, around two hundred meters away from his companions. He did not actually see
the sale that transpired between Lopez and appellant but he saw his teammates
accosting appellant after the latter’s arrest. He was likewise the one who conducted
the custodial investigation of appellant wherein the latter was apprised of his
rights to remain silent, to information and to counsel. Appellant, however, orally
waived his right to counsel.6
Pejoro also claimed having prepared Exhibit “G,” the “Receipt of Property
Seized/Confiscated” which appellant signed, admitting therein the confiscation of
four tea bags of marijuana dried leaves in his possession. Pejoro likewise informed
the court below that, originally, what he placed on the receipt was that only one
marijuana leaf was confiscated in exchange for P20.00. However, Lopez and
Villaruz corrected his entry by telling him to put “two,” instead of “one” and “40,”
instead of “20”. He agreed to the correction since they were the ones who were
personally and directly involved in the purchase of the marijuana and the arrest of
appellant.7
Dr. Pedro S. Calara, a medical officer at Camp Olivas, examined appellant at
5:30 P.M. of the day after the latter’s apprehension, and the results were practically
normal except for his relatively high blood pressure. The doctor also did not find
any trace of physical injury on the person of appellant. The next day, he again
examined appellant due to the latter’s complaint of gastrointestinal pain. In the
course of the examination, Dr. Calara discovered that appellant has a history of
peptic ulcer, which
_________________
4 TSN, April 6, 1989, 5-32.
5 Ibid., May 5, 1989, 2.
6 Ibid., May 24, 1989, 18; May 5, 1989, 11.
7 Ibid., May 24, 1989, 21-24.
561
VOL. 234, JULY 29, 1994 561
P a g e 90 | 279
 People vs. Simon
causes him to experience abdominal pain and consequently vomit blood. In the
afternoon, appellant came back with the same complaint but, except for the gastro-
intestinal pain, his physical condition remained normal.8
As expected, appellant tendered an antipodal version of the attendant facts,
claiming that on the day in question, at around 4:30 P.M., he was watching
television with the members of his family in their house when three persons, whom
he had never met before suddenly arrived. Relying on the assurance that they
would just inquire about something from him at their detachment, appellant
boarded a jeep with them. He was told that they were going to Camp Olivas, but
he later noticed that they were taking a different route. While on board, he was
told that he was a pusher so he attempted to alight from the jeep but he was
handcuffed instead. When they finally reached the camp, he was ordered to sign
some papers and, when he refused, he was boxed in the stomach eight or nine times
by Sgt. Pejoro. He was then compelled to affix his signature and fingerprints on the
documents presented to him. He denied knowledge of the P20.00 or the dried
marijuana leaves, and insisted that the twenty-peso bill came from the pocket of
Pejoro. Moreover, the reason why he vomited blood was because of the blows he
suffered at the hands of Pejoro. He admitted having escaped from the NARCOM
office but claimed that he did so since he could no longer endure the maltreatment
to which he was being subjected. After escaping, he proceeded to the house of his
uncle, Bienvenido Sunga, at San Matias, Guagua, reaching the place at around 6:30
or 7:30 P.M. There, he consulted a quack doctor and, later, he was accompanied by
his sister to the Romana Pangan District Hospital at Floridablanca, Pampanga
where he was confined for three days.9
Appellant’s brother, Norberto Simon, testified to the fact that appellant was
hospitalized at Floridablanca, Pampanga after undergoing abdominal pain and
vomiting of blood. He likewise confirmed that appellant had been suffering from
peptic ulcer even before the latter’s arrest.10 Also, Dr. Evelyn Gomez-Aguas, a
_________________
8 Ibid., June 14, 1989, 3-22.
9 Ibid., July 10, 1989, 5-26.
10 Ibid., July 17, 1989, 8-16.
562
562 SUPREME COURT REPORTS ANNOTATED
People vs. Simon
resident physician of Romana Pangan District Hospital, declared that she treated
appellant for three days due to abdominal pain, but her examination revealed that
the cause for this ailment was appellant’s peptic ulcer. She did not see any sign of
slight or serious external injury, abrasion or contusion on his body. 11
On December 4, 1989, after weighing the evidence presented, the trial court
rendered judgment convicting appellant for a violation of Section 4, Article II of
Republic Act No. 6425, as amended, and sentencing him to suffer the penalty of life
imprisonment, to pay a fine of twenty thousand pesos and to pay the costs. The four
CRIMINAL LAW | PENALTIES
tea bags of marijuana dried leaves were likewise ordered confiscated in favor of the
Government.12
Appellant now prays the Court to reverse the aforementioned judgment of the
lower court, contending in his assignment of errors that the latter erred in (1) not
upholding his defense of “frame-up,” (2) not declaring Exhibit “G” (Receipt of
Property Seized/Confiscated) inadmissible in evidence, and (3) convicting him of a
violation of the Dangerous Drugs Act.13
At the outset, it should be noted that while the People’s real theory and
evidence is to the effect that appellant actually sold only two tea bags of marijuana
dried leaves, while the other two tea bags were merely confiscated subsequently
from his possession,14 the latter not being in any way connected with the sale, the
information alleges that he sold and delivered four tea bags of marijuana dried
leaves.15 In view thereof, the issue presented for resolution in this appeal is merely
the act of selling the two tea bags allegedly committed by appellant, and does not
include the disparate and distinct issue of illegal possession of the other two tea
bags which separate offense is not charged herein.16
To sustain a conviction for selling prohibited drugs, the sale must be clearly
and unmistakably established.17 To sell means to
_______________
11Ibid., August 18, 1989, 36, 41-43, 47-49.
12 Original Record, 174-175; per Judge Arsenio P. Roman.
13 Brief for Accused-Appellant, 3; Rollo, 54.
14 Exhibits F and G, Folder of Exhibits; TSN, July 10, 1989, 53.
15 Original Record, 2.
16 See People vs. Salamat, G.R. No. 103295, August 20, 1993.
17 People vs. Alilin, G.R. No. 84363, March 4, 1992, 206 SCRA 772.
563
VOL. 234, JULY 29, 1994 563
People vs. Simon
give, whether for money or any other material consideration. 18 It must, therefore,
be established beyond doubt that appellant actually sold and delivered two tea bags
of marijuana dried leaves to Sgt. Lopez, who acted as the poseur-buyer, in exchange
for two twenty-peso bills.
After an assiduous review and calibration of the evidence adduced by both
parties, we are morally certain that appellant was caught in flagrante
delicto engaging in the illegal sale of prohibited drugs. The prosecution was able to
prove beyond a scintilla of doubt that appellant, on October 22, 1988, did sell two
tea bags of marijuana dried leaves to Sgt. Lopez. The latter himself creditably
testified as to how the sale took place and his testimony was amply corroborated
by his teammates. As between the straightforward, positive and corroborated
testimony of Lopez and the bare denials and negative testimony of appellant, the
former undeniably deserves greater weight and is more entitled to credence.
We are aware that the practice of entrapping drug traffickers through the
utilization of poseur-buyers is susceptible to mistake, harassment, extortion and
P a g e 91 | 279
abuse.19 Nonetheless, such causes for judicial apprehension and doubt do not
obtain in the case at bar. Appellant’s entrapment and arrest were not effected in a
haphazard way, for a surveillance was conducted by the team before the buy-bust
operation was effected.20 No ill motive was or could be attributed to them, aside
from the fact that they are presumed to have regularly performed their official
duty.21 Such lack of dubious motive coupled with the presumption of regularity in
the performance of official duty, as well as the findings of the trial court on the
credibility of witnesses, should prevail over the self-serving and uncorroborated
claim of appellant of having been framed,22 erected as it is upon the mere shifting
sands of an alibi. To top it all, appellant was caught red-handed delivering
_________________
18 See People vs. Querrer, G.R. No. 97147, July 15, 1992, 211 SCRA 502.
19 People vs. Lati, G.R. No. 70393, April 17, 1990, 184 SCRA 336.
20 TSN, May 5, 1989, 5.
21 Sec. 3(m), Rule 131, Rules of Court.
22 See People vs. Labra, G.R. No. 98427, November 20, 1992, 215 SCRA 822.
564
564 SUPREME COURT REPORTS ANNOTATED
People vs. Simon
prohibited drugs, and while there was a delimited chance for him to controvert the
charge, he does not appear to have plausibly done so.
When the drug seized was submitted to the Crime Laboratory Service of the
then Philippine Constabulary-Integrated National Police (PC-INP) at Camp Olivas
for examination, P/Cpl. Marlyn Salangad, a forensic chemist therein,23 confirmed
in her Technical Report No. NB-448-88 that the contents of the four tea bags
confiscated from appellant were positive for and had a total weight of 3.8 grams of
marijuana.24 Thus, the corpus delicti of the crime had been fully proved with
certainty and conclusiveness.25
Appellant would want to make capital of the alleged inconsistencies and
improbabilities in the testimonies of the prosecution witnesses. Foremost,
according to him, is the matter of who really confiscated the marijuana tea bags
from him since, in open court, Pejoro asserted that he had nothing to do with the
confiscation of the marijuana, but in the aforementioned “Receipt of Property
Seized/Confiscated,” he signed it as the one who seized the same.26
Suffice it to say that whether it was Villaruz or Pejoro who confiscated the
marijuana will not really matter since such is not an element of the offense with
which appellant is charged. What is unmistakably clear is that the marijuana was
confiscated from the possession of appellant. Even, assuming arguendo that the
prosecution committed an error on who actually seized the marijuana from
appellant, such an error or discrepancy refers only to a minor matter and, as such,
neither impairs the essential integrity of the prosecution evidence as a whole nor
reflects on the witnesses’ honesty.27 Besides, there was clearly a mere imprecision
of language since Pejoro obviously meant that he did not take part in
CRIMINAL LAW | PENALTIES
the physical taking of the drug from the person of appellant, but he participated in
the legal seizure or confiscation
_______________
23 TSN, August 18, 1989, 3.
24 Ibid., id., 12; Exhibit M, Folder of Exhibits.
25 People vs. Celiz, et al., G.R. No. 92849, October 20, 1992, 214 SCRA 755.
26 Brief for Accused-Appellant, 4-5; Rollo, 55-56.
27 People vs. Fernandez, G.R. No. 86495, May 13, 1992, 209 SCRA 1.
565
VOL. 234, JULY 29, 1994 565
People vs. Simon
thereof as the investigator of their unit.
Next, appellant adduces the argument that the twenty-peso bills allegedly
confiscated from him were not powdered for finger-printing purposes contrary to
the normal procedure in buy-bust operations.28 This omission has been
satisfactorily explained by Pfc. Virgilio Villaruz in his testimony, as follows:
“Q Is it the standard operating procedure of your unit that in conducting such operation
you do not anymore provide a powder (sic) on the object so as to determine the
thumbmark or identity of the persons taking hold of the object?
A We were not able to put powder on these denominations because we are lacking that
kind of material in our office since that item can be purchased only in Manila and
only few are producing that, sir.
xxx
Q Is it not a fact that your office is within (the) P.C. Crime Laboratory, CIS, as well as
the office of NICA?
A Our office is only adjacent to those offices but we cannot make a request for that
powder because they, themselves, are using that in their own work, sir.”29
The foregoing explanation aside, we agree that the failure to mark the money bills
used for entrapment purposes can under no mode of rationalization be fatal to the
case of the prosecution because the Dangerous Drugs Act punishes “any person
who, unless authorized by law, shall sell, administer, deliver, give away to another,
distribute, dispatch in transit or transport any prohibited drug, or shall act as a
broker in any of such transactions.”30 The dusting of said bills with phosphorescent
powder is only an evidentiary technique for identification pur-poses, which
identification can be supplied by other species of evidence. Again, appellant
contends that there was neither a relative of his nor any barangay official or
civilian to witness the seizure. He decries the lack of pictures taken before, during
and after his
_______________
P a g e 92 | 279
 28 Brief for Accused-Appellant, 6; Rollo, 57.
29 TSN, May 5, 1989, 7.
30 People vs. Castiller, G.R. No. 87783, August 6, 1990, 188 SCRA 376.
566
566 SUPREME COURT REPORTS ANNOTATED
People vs. Simon
arrest. Moreover, he was not reported to or booked in the custody of
any barangay official or police authorities.31 These are absurd disputations. No law
or jurisprudence requires that an arrest or seizure, to be valid, be witnessed by a
relative, a barangay official or any other civilian, or be accompanied by the taking
of pictures. On the contrary, the police enforcers having caught appellant
in flagrante delicto, they were not only authorized but were also under the
obligation to effect a warrantless arrest and seizure.
Likewise, contrary to appellant’s contention, there was an arrest report
prepared by the police in connection with his apprehension. Said Booking Sheet
and Arrest Report32 states, inter alia, that “suspect was arrested for selling two tea
bags of suspected marijuana dried leaves and the confiscation of another two tea
bags of suspected marijuana dried leaves.” Below these remarks was affixed
appellant’s signature. In the same manner, the receipt for the seized property,
hereinbefore mentioned, was signed by appellant wherein he acknowledged the
confiscation of the marked bills from him.33
However, we find and hereby declare the aforementioned exhibits inadmissible
in evidence. Appellant’s conformance to these documents are declarations against
interest and tacit admissions of the crime charged. They were obtained in violation
of his right as a person under custodial investigation for the commission of an
offense, there being nothing in the records to show that he was assisted by
counsel.34 Although appellant manifested during the custodial investigation that
he waived his right to counsel, the waiver was not made in writing and in the
presence of counsel,35 hence whatever incriminatory admission or confession may
be extracted from him, either verbally or in writing, is not allowable in
evidence.36 Besides, the arrest report is self-serving and hearsay and can easily be
concocted to implicate a suspect.
_______________
31 Brief for Accused-Appellant, 6-7; Rollo, 57-58.
32 Exhibit F, Folder of Exhibits.
33 Exhibit G, ibid.
34 People vs. Mauyao, G.R. No. 84525, April 6, 1992, 207 SCRA 732.
35 TSN, May 5, 1989, 11.
36 Sec. 12(1), Art. III, 1987 Constitution.
567
VOL. 234, JULY 29, 1994 567
People vs. Simon
CRIMINAL LAW | PENALTIES
Notwithstanding the objectionability of the aforesaid exhibits, appellant cannot
thereby be extricated from his predicament since his criminal participation in the
illegal sale of marijuana has been sufficiently proven. The commission of the offense
of illegal sale of prohibited drugs requires merely the consummation of the selling
transaction37 which happens the moment the buyer receives the drug from the
seller.38 In the present case, and in light of the preceding discussion, this sale has
been ascertained beyond any peradventure of doubt.
Appellant then asseverates that it is improbable that he would sell marijuana
to a total stranger.39 We take this opportunity to once again reiterate the doctrinal
rule that drug-pushing, when done on a small scale as in this case, belongs to that
class of crimes that may be committed at any time and in any place.40 It is not
contrary to human experience for a drug pusher to sell to a total stranger, 41 for
what matters is not an existing familiarity between the buyer and seller but their
agreement and the acts constituting the sale and delivery of the marijuana
leaves.42 While there may be instances where such sale could be improbable, taking
into consideration the diverse circumstances of person, time and place, as well as
the incredibility of how the accused supposedly acted on that occasion, we can safely
say that those exceptional particulars are not present in this case.
Finally, appellant contends that he was subjected to physical and mental
torture by the arresting officers which caused him to escape from Camp Olivas the
night he was placed under custody.43 This he asserts to support his explanation as
to how his signatures on the documents earlier discussed were supposedly obtained
by
_______________
37 People vs. Rumeral, G.R. No. 86320, August 5, 1991, 200 SCRA 194.
38 People vs. Sibug, G.R. No. 108520, January 24, 1994.
39 Brief for Accused-Appellant, 11; Rollo, 62.
40 People vs. Tandoy, G.R. No. 80505, December 4, 1990, 192 SCRA 28.
41 Cf. People vs. Cina, G.R. No. 88220, October 1, 1990, 190 SCRA 199.
42 People vs. Consuelo, G.R. No. 77755, April 18, 1990, 184 SCRA 402.
43 TSN, July 10, 1989, 12-13.
568
568 SUPREME COURT REPORTS ANNOTATED
People vs. Simon
force and coercion.
The doctrine is now too well embedded in our jurisprudence that for evidence
to be believed, it must not only proceed from the mouth of a credible witness but
must be credible in itself such as the common experience and observation of
mankind can approve as probable under the circumstances.44 The evidence on
record is bereft of any support for appellant’s allegation of maltreatment. Two
doctors, one for the prosecution45 and the other for the defense,46 testified on the
absence of any tell-tale sign or indication of bodily injury, abrasions or contusions
on the person of appellant. What is evident is that the cause of his abdominal pain
was his peptic ulcer from which he had been suffering even before his arrest.47 His
P a g e 93 | 279
own brother even corroborated that fact, saying that appellant has had a history of
bleeding peptic ulcer.48
Furthermore, if it is true that appellant was maltreated at Camp Olivas, he
had no reason whatsoever for not divulging the same to his brother who went to
see him at the camp after his arrest and during his detention there.49 Significantly,
he also did not even report the matter to the authorities nor file appropriate charges
against the alleged malefactors despite the opportunity to do so50 and with the legal
services of counsel being available to him. Such omissions funnel down to the
conclusion that appellant’s story is a pure fabrication.
These, and the events earlier discussed, soundly refute his allegations that his
arrest was baseless and premeditated for the NARCOM agents were determined to
arrest him at all costs.51 Premeditated or not, appellant’s arrest was only the
culmination, the final act needed for his isolation from society and it was
providential that it came about after he was caught in the very act of illicit trade of
prohibited drugs. Accordingly, this opinion
___________________
44 People vs. Eslaban, G.R. Nos. 101211-12, February 8, 1993, 218 SCRA 534.
45 TSN, June 14, 1989, 22.
46 Ibid., August 18, 1989, 48.
47 Ibid., July 17, 1989, 15-16.
48 Ibid., October 23, 1988, 15-16.
49 Ibid., July 17, 1989, 22; October 23, 1988, 15.
50 Ibid., July 10, 1989, 26-27.
51 Brief for Accused-Appellant, 4; Rollo, 55.
569
VOL. 234, JULY 29, 1994 569
People vs. Simon
could have concluded on a note of affirmance of the judgment of the trial court.
However, Republic Act No. 6425, as amended, was further amended by Republic
Act No. 7659 effective December 31, 1993,52 which supervenience necessarily
affects the original disposition of this case and entails additional questions of law
which we shall now resolve.
II
The provisions of the aforesaid amendatory law, pertinent to the adjudication of
the case at bar, are to this effect:
“SEC.13.Sections 3, 4, 5, 7, 8 and 9 of Art. II of Republic Act No. 6425, as amended,
known as the Dangerous Drugs Act of 1972, are hereby amended to read as follows:
xxx
‘SEC.4.Sale, Administration, Delivery, Distribution and Transportation of
Prohibited Drugs.—The penalty of reclusion perpetua to death and a fine ranging
from five hundred thousand pesos to ten million pesos shall be imposed upon any
person who, unless authorized by law, shall sell, administer, deliver, give away to
another, distribute, dispatch in transit or transport any prohibited drug, or shall
act as a broker in any of such transactions.’
CRIMINAL LAW | PENALTIES
xxx
“SEC.17.Section 20, Article IV of Republic Act No. 6425, as amended, known as
the Dangerous Drugs Act of 1972, is hereby amended to read as follows:
‘Sec.20.Application of Penalties, Confiscation and Forfeiture of the Proceeds or
Instrument of the Crime.—The penalties for offenses under Sections 3, 4, 7, 8 and
9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be
applied if the dangerous drugs involved is in any of the following quantities:
xxx
5.750 grams or more of indian hemp or marijuana
xxx
_________________
52 Sec. 28 of Republic Act No. 7659 provides that it “shall take effect fifteen (15)
days after its publication in two (2) national newspapers of general circulation,”
and it was so published in the December 16, 1993 issues of the Manila Bulletin,
Philippine Star, Malaya and Philippine Times Journal.
570
570 SUPREME COURT REPORTS ANNOTATED
People vs. Simon
‘Otherwise, if the quantity involved is less than the foregoing quantities, the
penalty shall range from prision correccional to reclusion perpetua depending upon
the quantity.’”
1.Considering that herein appellant is being prosecuted for the sale of four tea bags
of marijuana with a total weight of only 3.8 grams and, in fact, stands to be
convicted for the sale of only two of those tea bags, the initial inquiry would be
whether the patently favorable provisions of Republic Act No. 7659 should be given
retroactive effect to entitle him to the lesser penalty provided thereunder, pursuant
to Article 22 of the Revised Penal Code.
Although Republic Act No. 6425 was enacted as a special law, albeit originally
amendatory and in substitution of the previous Articles 190 to 194 of the Revised
Penal Code,53 it has long been settled that by force of Article 10 of said Code the
beneficent provisions of Article 22 thereof applies to and shall be given
retrospective effect to crimes punished by special laws.54 The exception in said
article would not apply to those convicted of drug offenses since habitual
delinquency refers to convictions for the third time or more of the crimes of serious
or less serious physical injuries,robo, hurto, estafa or falsification.55
Since, obviously, the favorable provisions of Republic Act No. 7659 could neither
have then been involved nor invoked in the present case, a corollary question would
be whether this court, at the present stage, can sua sponte apply the provisions of
said Article 22 to reduce the penalty to be imposed on appellant. That issue has
likewise been resolved in the cited case of People vs. Moran, et al., ante., thus:
“x x x. The plain precept contained in article 22 of the Penal Code, declaring the
retroactivity of penal laws in so far as they are favorable to persons accused of a
felony, would be useless and nugatory if the courts of justice were not under
obligation to fulfill such duty, irrespective
P a g e 94 | 279
_______________ People vs. Simon
where the quantity of the drugs involved is less than the quantities stated in the
Title Five, Crimes Relative to Opium and Other Prohibited Drugs.
53
first paragraph shall range from prision correccional to reclusion temporal, and
U.S. vs. Hocbo, 12 Phil. 304 (1908); U.S. vs. Parrone, 24 Phil. 29 (1913); U.S.
54
not reclusion perpetua. This is also concordant with the fundamental rule in
vs. Almencion, 25 Phil. 648 (1913); People vs. Moran, et al., 44 Phil. criminal law that all doubts should be construed in a manner favorable to the
387 (1923); People vs. Parel, 44 Phil. 437 (1923); People vs. Tamayo, 61 Phil. accused.
225 (1935). 3.Where, as in this case, the quantity of the dangerous drug is only 3.8 grams,
55 Article 62(5), Revised Penal Code.
hence covered by the imposable range of penalties under the second paragraph of
571 Section 20, as now modified, the law provides that the penalty shall be taken from
VOL. 234, JULY 29, 1994 571 said range “depending upon the quantity” of the drug involved in the case. The
penalty in said second paragraph constitutes a complex one composed of three
People vs. Simon
distinct penalties, that is, prision correccional, prision mayor, and reclusion
of whether or not the accused has applied for it, just as would also all provisions
temporal. In such a situation, the Code provides that each one shall form a period,
relating to the prescription of the crime and the penalty.”
with the lightest of them being the minimum, the next as the medium, and the
If the judgment which could be affected and modified by the reduced penalties
most severe as the maximum period.58
provided in Republic Act No. 7659 has already become final and executory or the
Ordinarily, and pursuant to Article 64 of the Code, the mitigating and
accused is serving sentence thereunder, then practice, procedure and pragmatic
aggravating circumstances determine which period of such complex penalty shall
considerations would warrant and necessitate the matter being brought to the
be imposed on the accused. The peculiarity of the second paragraph of Section
judicial authorities for relief under a writ of habeas corpus.56
20, however, is its specific mandate, above quoted, that the penalty shall
2.Probably through oversight, an error on the matter of imposable penalties
instead depend upon the quantity of the drug subject of the criminal
appears to have been committed in the drafting of the aforesaid law, thereby calling
transactions.59 Accordingly, by way of exception to Article 77 of the Code and to
for and necessitating judicial reconciliation and craftsmanship.
subserve the purpose of Section 20 of Republic Act No. 7659, each of the aforesaid
As applied to the present case, Section 4 of Republic Act No. 6425, as now
component penalties shall be considered as a principal imposable penalty
further amended, imposes the penalty of reclusion perpetua to death and a fine
depending on the quantity of the drug involved. Thereby, the modifying
ranging from P500,000.00 to P10,000,000.00 upon any person who shall unlawfully
circumstances will not altogether be disregarded. Since each component penalty of
sell, administer, deliver, give away, distribute, dispatch in transit or transport any
the total complex penalty will have to be imposed separately as determined by the
prohibited drug. That penalty, according to the amendment to Section 20 of the
quantity of the drug involved, then the modifying circumstances can be used to fix
law, shall be applied if what is involved is 750 grams or more of indian hemp or
the proper period of that component penalty, as shall hereafter be explained.
marijuana; otherwise, if the quantity involved is less, the penalty shall range
It would, therefore, be in line with the provisions of Section 20 in the context of
fromprision correccional to reclusion perpetua depending upon the quantity.
our aforesaid disposition thereon that, unless
In other words, there is here an overlapping error in the provisions on the
penalty of reclusion perpetua by reason of its dual imposition, that is, as the
maximum of the penalty where the marijuana is less than 750 grams, and also as ________________
the minimum of the penalty where the marijuana involved is 750 grams or more.
The same error has been committed with respect to the other prohibited and
58 Article 77, Revised Penal Code.
regulated drugs provided in said Section 20. To harmonize such conflicting
59 Thisgraduated scheme of penalties is not stated with regard and does not
provisions in order to give effect to the whole law,57 we hereby sold that the penalty apply to the quantities and their penalties provided in the first paragraph, the
to be imposed penalties therein being the same regardless of whether the quantities exceed those
specified therein.
_________________ 573
VOL. 234, JULY 29, 1994 573
56See
Harden vs. Director of Prisons, 81 Phil. 741 (1948); Gumabon, et al. vs. People vs. Simon
Director of the Bureau of Prisons, L-30026, January 30, 1971, 37 SCRA 420. there are compelling reasons for a deviation, the quantities of the drugs
57Lopez and Sons, Inc. vs. Court of Tax Appeals, et al., 100 Phil. 850 (1957).
enumerated in its second paragraph be divided into three, with the resulting
572 quotient, and double or treble the same, to be respectively the bases for allocating
572 SUPREME COURT REPORTS ANNOTATED the penalty proportionately among the three aforesaid periods according to the
severity thereof. Thus, if the marijuana involved is below 250 grams, the penalty
CRIMINAL LAW | PENALTIES P a g e 95 | 279
to be imposed shall be prision correccional; from 250 to 499 grams, prision
mayor; and 500 to 749 grams, reclusion temporal. Parenthetically, fine is imposed
as a conjunctive penalty only if the penalty is reclusion perpetua to death.60
Now, considering the minimal quantity of the marijuana subject of the case at
bar, the penalty of prision correccional is consequently indicated but, again,
another preliminary and cognate issue has first to be resolved.
4.Prision correccional has a duration of 6 months and 1 day to 6 years and, as
a divisible penalty, it consists of three periods as provided in the text of and
illustrated in the table provided by Article 76 of the Code. The question is whether
or not in determining the penalty to be imposed, which is here to be taken from the
penalty of prision correccional, the presence or absence of mitigating, aggravating
or other circumstances modifying criminal liability should be taken into account.
We are not unaware of cases in the past wherein it was held that, in imposing
the penalty for offenses under special laws, the rules on mitigating or aggravating
circumstances under the Revised Penal Code cannot and should not be applied. A
review of such doctrines as applied in said cases, however, reveals that the reason
therefor was because the special laws involved provided their own specific penalties
for the offenses punished thereunder, and which penalties were not taken from or
with reference to those in the Revised Penal Code. Since the penalties then
provided by the special laws concerned did not provide for the minimum, medium
or maximum periods, it would consequently be impossible to consider the
aforestated modifying circumstances whose main function is to determine the
period of the penalty in accordance with the rules in Article 64 of the Code.
This is also the rationale for the holding in previous cases that
________________
60Sec. 4, in relation to Sec. 20, R.A. No. 7659.
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People vs. Simon
the provisions of the Code on the graduation of penalties by degrees could not be
given supplementary application to special laws, since the penalties in the latter
were not components of or contemplated in the scale of penalties provided by Article
71 of the former. The suppletory effect of the Revised Penal Code to special laws,
as provided in Article 10 of the former, cannot be invoked where there is a legal or
physical impossibility of, or a prohibition in the special law against, such
supplementary application.
The situation, however, is different where although the offense is defined in
and ostensibly punished under a special law, the penalty therefor is actually taken
from the Revised Penal Code in its technical nomenclature and, necessarily, with
its duration, correlation and legal effects under the system of penalties native to
said Code. When, as in this case, the law involved speaks of prision correccional, in
its technical sense under the Code, it would consequently be both illogical and
absurd to posit otherwise. More on this later.
CRIMINAL LAW | PENALTIES
For the nonce, we hold that in the instant case the imposable penalty under
Republic Act No. 6425, as amended by Republic Act No. 7659, is prision
correccional, to be taken from the medium period thereof pursuant to Article 64 of
the Revised Penal Code, there being no attendant mitigating or aggravating
circumstance.
5.At this juncture, a clarificatory discussion of the developmental changes in
the penalties imposed for offenses under special laws would be necessary.
Originally, those special laws, just as was the conventional practice in the
United States but differently from the penalties provided in our Revised Penal Code
and its Spanish origins, provided for one specific penalty or a range of penalties
with definitive durations, such as imprisonment for one year or for one to five years
but without division into periods or any technical statutory cognomen. This is the
special law contemplated in and referred to at the time laws like the Indeterminate
Sentence Law61 were passed during the American regime.
________________
61Act No. 4103, effective on December 5, 1933.
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VOL. 234, JULY 29, 1994 575
People vs. Simon
Subsequently, a different pattern emerged whereby a special law would direct that
an offense thereunder shall be punished under the Revised Penal Code and in the
same manner provided therein. Inceptively, for instance, Commonwealth Act No.
30362 penalizing non-payment of salaries and wages with the periodicity prescribed
therein, provided:
“SEC.4.Failure of the employer to pay his employee or laborer as required by
section one of this Act, shall prima facie be considered a fraud committed by such
employer against his employee or laborer by means of false pretenses similar to
those mentioned in article three hundred and fifteen, paragraph four, sub-
paragraph two (a) of the Revised Penal Code and shall be punished in the same
manner as therein provided.”63
Thereafter, special laws were enacted where the offenses defined therein were
specifically punished by the penalties as technically named and understood in the
Revised Penal Code. These are exemplified by Republic Act No. 1700 (Anti-
Subversion Act) where the penalties ranged from arresto mayor to
death;64 Presidential Decree No. 1612 (Anti-Fencing Decree) where the penalties
run from arresto mayor to prision mayor; and Presi-dential Decree No. 1866 (illegal
possession and other prohibited acts involving firearms), the penalties wherefor
may involve prision mayor, reclusion temporal, reclusion perpetua or death.
Another variant worth mentioning is Republic Act No. 6539 (Anti-Carnapping
Act of 1972) where the penalty is imprisonment for not less than 14 years and 8
months and not more than 17 years and 4 months, when committed without
violence or intimidation of persons or force upon things; not less than 17 years and
4 months and not more than 30 years, when committed with violence against or
intimidation of any person, or force upon
P a g e 96 | 279
________________
Effective on June 9, 1938.
62
See a similar format in P.D. No. 330 which penalizes the illegal taking of
63
timber and forest products under Arts. 308, 309 and 310 of the Revised Penal Code
by reference.
64 In fact, the penalty for officers or ranking leaders was prision mayor to death,
just like the penalty for treason by a resident alien under Article 114 of the Revised
Penal Code.
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576 SUPREME COURT REPORTS ANNOTATED
People vs. Simon
things; and life imprisonment to death, when the owner, driver or occupant of the
carnapped vehicle is killed.
With respect to the first example, where the penalties under the special law are
different from and are without reference or relation to those under the Revised
Penal Code, there can be no suppletory effect of the rules for the application of
penalties under said Code or by other relevant statutory provisions based on or
applicable only to said rules for felonies under the Code. In this type of special law,
the legislative intendment is clear.
The same exclusionary rule would apply to the last given example, Republic Act
No. 6539. While it is true that the penalty of 14 years and 8 months to 17 years and
4 months is virtually equivalent to the duration of the medium period of reclusion
temporal, such technical term under the Revised Penal Code is not given to that
penalty for carnapping. Besides, the other penalties for carnapping attended by the
qualifying circumstances stated in the law do not correspond to those in the Code.
The rules on penalties in the Code, therefore, cannot suppletorily apply to Republic
Act No. 6539 and special laws of the same formulation.
On the other hand, the rules for the application of penalties and the correlative
effects thereof under the Revised Penal Code, as well as other statutory enactments
founded upon and applicable to such provisions of the Code, have suppletory effect
to the penalties under the former Republic Act No. 1700 and those now provided
under Presidential Decrees Nos. 1612 and 1866. While these are special laws, the
fact that the penalties for offenses thereunder are those provided for in the Revised
Penal Code lucidly reveals the statutory intent to give the related provisions on
penalties for felonies under the Code the corresponding application to said special
laws, in the absence of any express or implicit proscription in these special laws.
To hold otherwise would be to sanction an indefensible judicial truncation of an
integrated system of penalties under the Code and its allied legislation, which could
never have been the intendment of Congress.
In People vs. Macatanda,65 a prosecution under a special law
________________
65G.R. No. 51368, November 6, 1981, 109 SCRA 35.
577
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VOL. 234, JULY 29, 1994 577
People vs. Simon
(Presidential Decree No. 533, otherwise known as the Anti-Cattle Rustling Law of
1974), it was contended by the prosecution that Article 64, paragraph 5, of the
Revised Penal Code should not apply to said special law. We said therein that—
“We do not agree with the Solicitor General that P.D. 533 is a special law entirely
distinct from and unrelated to the Revised Penal Code. From the nature of the
penalty imposed which is in terms of the classification and duration of penalties as
prescribed in the Revised Penal Code, which is not for penalties as are ordinarily
imposed in special laws, the intent seems clear that P.D. 533 shall be deemed as
an amendment of the Revised Penal Code, with respect to the offense of theft of
large cattle (Art. 310) or otherwise to be subject to applicable provisions thereof such
as Article 104 of the Revised Penal Code x x x. Article 64 of the same Code should,
likewise, be applicable, x x x.” (Italics supplied.)
More particularly with regard to the suppletory effect of the rules on penalties in
the Revised Penal Code to Republic Act No. 6425, in this case involving Article
63(2) of the Code, we have this more recent pronouncement:
“x x x. Pointing out that as provided in Article 10 the provisions of the Revised
Penal Code shall be ‘supplementary’ to special laws, this Court held that where the
special law expressly grants to the court discretion in applying the penalty
prescribed for the offense, there is no roomfor the application of the provisions of
the Code. x x x
“The Dangerous Drugs Act of 1972, as amended by P.D. No. 1623, contains no
explicit grant of discretion to the Court in the application of the penalty prescribed
by the law. In such case, the court must be guided by the rules prescribed by the
Revised Penal Code concerning the application of penalties which distill the ‘deep
legal thought and centuries of experience in the administration of criminal laws.’”
(Emphasis ours.)66
________________
66 People vs. Tsang Hin Wai, et al., G.R. No. 66389, September 8, 1986, 144
SCRA 22. In his sponsorship speech of Senate Bill No. 891 as Chairman of the
Special Committee on the Death Penalty, Senator Arturo M. Tolentino made this
enlightening explanation as reported in the records of the Senate and which is
pertinent to our present discussion: “x x x Article 190, referring to prohibited drugs,
actually was repealed by the enactment of a special law referring to drugs. But
since we were only amending the Revised Penal Code in this proposed bill or
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578 SUPREME COURT REPORTS ANNOTATED
People vs. Simon
Under the aforestated considerations, in the case of the Dangerous Drugs Act as
now amended by Republic Act No. 7659 by the incorporation and prescription
therein of the technical penalties defined in and constituting integral parts of the
three scales of penalties in the Code,67 with much more reason should the
P a g e 97 | 279
provisions of said Code on the appreciation and effects of all attendant modifying
circumstances apply in fixing the penalty. Likewise, the different kinds or
classifications of penalties and the rules for graduating such penalties by degrees
should have supplementary effect on Republic Act No. 6425, except if they would
result in absurdities as will now be explained.
While not squarely in issue in this case, but because this aspect is involved in
the discussion on the role of modifying circumstances, we have perforce to lay down
the caveat that mitigating circumstances should be considered and applied only if
they affect theperiods and the degrees of the penalties within rational limits.
Prefatorily, what ordinarily are involved in the graduation and consequently
determine the degree of the penalty, in accordance with the rules in Article 61 of
the Code as applied to the scale of penalties in Article 71, are the stage of execution
of the crime and the nature of the participation of the accused. However, under
paragraph 5 of Article 64, when there are two or more ordinary mitigating
circumstances and no aggravating circumstance, the penalty shall be reduced by
one degree. Also, the presence of privileged mitigating circumstances, as provided
in Articles 67 and 68, can reduce the penalty by one or two degrees, or even more.
These provisions of Articles 64(5), 67 and 68 should not apply in toto in the
determination of the proper penalty under the aforestated second paragraph of
Section 20 of Republic Act No. 6425, to avoid anomalous results which could not
have been contemplated by the legislature.
________________
draft, we reincorporated Article 190 in an amended form. x x x It reincorporates
and amends Article 190 on the importation, manufacture, sale, administration
upon another, or distribution of prohibited drugs, planting or cultivation of any
plant, which is a source of prohibited drugs, maintenance of a den, dive or similar
place, as defined in the Dangerous Drugs Law” (9th CRP, 1st Regular Session, Vol.
1, No. 71, 12).
67 See Articles 25, 70 and 71, Revised Penal Code.
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People vs. Simon
Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in
some manner not specially provided for in the four preceding paragraphs thereof,
the courts shall proceed by analogy therewith. Hence, when the penalty prescribed
for the crime consists of one or two penalties to be imposed in their full extent, the
penalty next lower in degree shall likewise consist of as many penalties which
follow the former in the scale in Article 71. If this rule were to be applied, and since
the complex penalty in this case consists of three discrete penalties in their full
extent, that is, prision correccional, prision mayor and reclu-sion temporal, then
one degree lower would be arresto menor, destierro and arresto mayor. There could,
however, be no further reduction by still one or two degrees, which must each
likewise consist of three penalties, since only the penalties of fine and public
censure remain in the scale.
CRIMINAL LAW | PENALTIES
The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or even reduce
the penalty by degrees, in no case should such graduation of penalties reduce the
imposable penalty beyond or lower than prision correccional. It is for this reason
that the three component penalties in the second paragraph of Section 20 shall each
be considered as an independent principal penalty, and that the lowest penalty
should in any event be prision correccional in order not to depreciate the
seriousness of drug offenses. Interpretatio fienda est ut res magis valeat quam
pereat. Such interpretation is to be adopted so that the law may continue to have
efficacy rather than fail. A perfect judicial solution cannot be forged from an
imperfect law, which impasse should now be the concern of and is accordingly
addressed to Congress.
6.The final query is whether or not the Indeterminate Sentence Law is
applicable to the case now before us. Apparently it does, since drug offenses are not
included in nor has appellant committed any act which would put him within the
exceptions to said law and the penalty to be imposed does not involve reclusion
perpetua or death, provided, of course, that the penalty as ultimately resolved will
exceed one year of imprisonment.68 The more important aspect, however, is how
the indeterminate sen-
_______________
68Section 2, Act No. 4103, as amended.
580
580 SUPREME COURT REPORTS ANNOTATED
People vs. Simon
tence shall be ascertained.
It is true that Section 1 of said law, after providing for indeterminate sentence
for an offense under the Revised Penal Code, states that “if the offense is punished
by any other law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum fixed by said
law and the minimum shall not be less than the minimum term prescribed by the
same.” We hold that this quoted portion of the section indubitably refers to an
offense under a special law wherein the penalty imposed was not taken from and
is without reference to the Revised Penal Code, as discussed in the preceding
illustrations, such that it may be said that the “offense is punished” under that law.
There can be no sensible debate that the aforequoted rule on indeterminate
sentence for offenses under special laws was necessary because of the nature of the
former type of penalties under said laws which were not included or contemplated
in the scale of penalties in Article 71 of the Code, hence there could be no minimum
“within the range of the penalty next lower to that prescribed by the Code for the
offense,” as is the rule for felonies therein. In the illustrative examples of penalties
in special laws hereinbefore provided, this rule applied, and would still apply, only
to the first and last examples. Furthermore, considering the vintage of Act No. 4103
as earlier noted, this holding is but an application and is justified under the rule
of contemporanea expositio.69
P a g e 98 | 279
 We repeat, Republic Act No. 6425, as now amended by Republic Act No. 7659,
has unqualifiedly adopted the penalties under the Revised Penal Code in their
technical terms, hence with their technical signification and effects. In fact, for
purposes of determining the maximum of said sentence, we have applied the
provisions of the amended Section 20 of said law to arrive atprision
correccional and Article 64 of the Code to impose the same in the medium period.
Such offense, although provided for in a special law, is now in effect punished by
and under the
________________
69 Contemporaneous exposition, or construction; a construction drawn from
the time when, and the circumstances under which, the subject-matter to be
construed, such as a custom or statute, originated (Black’s Law Dictionary, 4th ed.,
390).
581
VOL. 234, JULY 29, 1994 581
People vs. Simon
Revised Penal Code. Correlatively, to determine the minimum, we must apply the
first part of the aforesaid Section 1 which directs that “in imposing a prison
sentence for an offense punished by the Revised Penal Code, or its amendments,
the court shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of said Code, and
the minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense.” (Italics ours.)
A divergent pedantic application would not only be out of context but also an
admission of the hornbook maxim that qui haeret in litera haeret in
cortice. Fortunately, this Court has never gone only skin-deep in its construction of
Act No. 4103 by a mere literal appreciation of its provisions. Thus, with regard to
the phrase in Section 2 thereof excepting from its coverage “persons convicted of
offenses punished with death penalty or life imprisonment,” we have held that
what is considered is the penalty actually imposed and not the penalty imposable
under the law,70 and that reclusion perpetua is likewise embraced therein although
what the law states is “life imprisonment.”
What irresistibly emerges from the preceding disquisition, therefore, is that
under the concurrence of the principles of literal interpretation, which have been
rationalized by comparative decisions of this Court; of historical interpretation, as
explicated by the antecedents of the law and related contemporaneous legislation;
and of structural interpretation, considering the interrelation of the penalties in
the Code as supplemented by Act No. 4103 in an integrated scheme of penalties, it
follows that the minimum of the indeterminate sentence in this case shall be
the penalty next lower to that prescribed for the offense. Thereby we shall have
interpreted the seeming ambiguity in Section 1 of Act No. 4103 in such a way as to
harmonize laws with laws, which is the best mode of interpretation. 71
CRIMINAL LAW | PENALTIES
________________
70 People vs. Roque, et al., 90 Phil. 142 (1951); People vs. Dimalanta, 92 Phil.
239 (1952); People vs. Moises, et al., G.R. L-32495, August 13, 1975, 66 SCRA 151.
71Interpretare et concordare leges legibus, est optimus interpretandi
modus (Black’s Law Dictionary, 4th ed., 953).
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582 SUPREME COURT REPORTS ANNOTATED
People vs. Simon
The Indeterminate Sentence Law is a legal and social measure of compassion, and
should be liberally interpreted in favor of the accused.72 The “minimum” sentence
is merely a period at which, and not before, as a matter of grace and not of right,
the prisoner may merely be allowed to serve the balance of his sentence outside of
his confinement.73 It does not constitute the totality of the penalty since thereafter
he still has to continue serving the rest of his sentence under set conditions. That
minimum is only the period when the convict’s eligibility for parole may be
considered. In fact, his release on parole may readily be denied if he is found
unworthy thereof, or his reincarceration may be ordered on legal grounds, even if
he has served the minimum sentence.
It is thus both amusing and bemusing if, in the case at bar, appellant should be
begrudged the benefit of a minimum sentence within the range of arresto
mayor, the penalty next lower to prision correccional which is the maximum range
we have fixed through the application of Articles 61 and 71 of the Revised Penal
Code. For, with fealty to the law, the court may set the minimum sentence at 6
months of arresto mayor, instead of 6 months and 1 day of prision correccional. The
difference, which could thereby even involve only one day, is hardly worth the
creation of an overrated tempest in the judicial teapot.
ACCORDINGLY, under all the foregoing premises, the judgment of conviction
rendered by the court a quo against accused-appellant Martin Simon y Sunga is
AFFIRMED, but with the MODIFICATION that he should be, as he hereby is,
sentenced to serve an indeterminate penalty of six (6) months of arresto mayor, as
the minimum, to four (4) years and two (2) months of prision correccional, as the
maximum thereof.
SO ORDERED.
Narvasa (C.J.), Cruz, Padilla, Bidin, Romero, Melo, Puno, Vitug, Kapuna
n and Mendoza, JJ., concur.
Feliciano, J., I join Davide, Jr., J. in his concurring and dissenting
opinion.
________________
72People vs. Nang Kay, 88 Phil. 515 (1951).
7324 C.J.S., Indeterminate Sentence, Sec. 1993, 1217-1218.
583
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P a g e 99 | 279
 People vs. Simon
Davide, Jr., J., Please see Concurring/Dissenting opinion.
Bellosillo, J., On leave.
Quiason, J., I join Justice Davide in his dissenting opinion.
CONCURRING AND DISSENTING OPINION
DAVIDE, JR.,J.:
I am still unable to agree with the view that (a) in appropriate cases where the
penalty to be imposed would be prision correccional pursuant to the second
paragraph of Section 20 of R.A. No. 6425, as amended by Section 17 of R.A. No.
7659, the sentence to be meted out, applying the Indeterminate Sentence Law (Act
No. 4103, as amended), should be that whose minimum is within the range of the
penalty next lower, i.e., arresto mayor; and (b) the presence of two or more
mitigating circumstances not offset by any mitigating circumstances or of a
privileged mitigating circumstance shall not reduce the penalty by one or two
degrees if the penalty to be imposed, taking into account the quantity of the
dangerous drugs involved, would be prision correccional.
I.
The first view is based on the proposition that since R.A. No. 7659 had unqualifiedly
adopted the penalties under the Revised Penal Code in their technical terms, hence
also their technical signification and effects, then what should govern is the first
part of Section 1 of the Indeterminate Sentence Law which directs that:
“in imposing a prison sentence for an offense punished by the Revised Penal Code,
or its amendments, the court shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said Code, and the
minimum which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense.”
Elsewise stated, by the adoption of the penalties provided for in the Revised Penal
Code for the offenses penalized under the Dangerous Drugs Act (R.A. No. 6425), as
amended, the latter
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584 SUPREME COURT REPORTS ANNOTATED
People vs. Simon
offenses would now be considered as punished under the Revised Penal Code for
purposes of the Indeterminate Sentence Law.
Section 1 of the Indeterminate Sentence Law (Act No. 4103, as amended by Act
No. 4225 and R.A. No. 4203) also provides that:
“if the offense is punished by any other law, the court shall sentence the accused to
an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum
prescribed by the same.” (Emphasis supplied).
There are, therefore, two categories of offenses which should be taken into account
in the application of the Indeterminate Sentence Law: (1) offenses punished by the
CRIMINAL LAW | PENALTIES
Revised Penal Code, and (2) offenses punished by other laws (or special laws). The
offenses punished by the Revised Penal Code are those defined and penalized in
Book II thereof, which is thus appropriately titled CRIMES AND PENALTIES. To
simplify further, a crime is deemed punished under the Revised Penal Code if it is
defined by it, and none other, as a crime and is punished by a penalty which is
included in the classification of Penalties in Chapter II, Title III of Book I thereof.
On the other hand, an offense is considered punished under any other law (or
special law) if it is not defined and penalized by the Revised Penal Code but by such
other law.
It is thus clear that an offense is punished by the Revised Penal Code if both its
definition and the penalty therefor are found in the said Code, and it is deemed
punished by a special law if its definition and the penalty therefor are found in the
special law. That the latter imports or borrows from the Revised Penal Code its
nomenclature of penalties does not make an offense in the special law punished
by or punishable under the Revised Penal Code. The reason is quite simple. It is
still the special law that defines the offense and imposes a penalty therefor,
although it adopts the Code’s nomenclature of penalties. In short, the mere use by
a special law of a penalty found in the Revised Penal Code can by no means make
an offense thereunder an offense “punished or punishable” by the Revised Penal
Code.
Thus, I cannot subscribe to the view that since R.A. No. 7659 had adopted the
penalties prescribed by the Revised Penal Code in drug cases, offenses related to
drugs should now be considered aspunished under the Revised Penal Code. If that
were so, then
585
VOL. 234, JULY 29, 1994 585
People vs. Simon
we are also bound, ineluctably, to declare that such offenses are mala in se and to
apply the Articles of the Revised Penal Code regarding the stages of a felony
(Article 6), the nature of participation (Article 16), accessory penalties (Articles 40-
45), application of penalties to principals, accomplices, and accessories (Article 46 et
seq.), complex crimes (Article 48), and graduation of penalties (Article 61), among
others. We cannot do otherwise without being drawn to an inconsistent posture
which is extremely hard to justify.
I respectfully submit then that the adoption by the Dangerous Drugs Act of the
penalties in the Revised Penal Code does not make an offense under the Dangerous
Drugs Act an offense punished by the Revised Penal Code. Consequently, where
the proper penalty to be imposed under Section 20 of the Dangerous Drugs Act
is prision correccional, then, applying the Indeterminate Sentence Law, the
indeterminate sentence to be meted on the accused should be that
whose minimum should not be less than the minimum prescribed by the special
law (the Dangerous Drugs Act), i.e., not lower than six (6) months and one (1) day
of prision correccional.
II.
The majority opinion holds the view that while the penalty provided for in Section
20 of the Dangerous Drugs Act is a complex one composed of three distinct
P a g e 100 | 279
penalties, viz., prision correccional, prision mayor, and reclusion temporal, and
that pursuant to Article 77 of the Revised Penal Code, each should form a period,
with the lightest of them being the minimum, the next as the medium, and the
most severe as the maximum, yet, considering that under the said second
paragraph of Section 20 the penaltydepends on the quantity of the drug subject of
the criminal transaction, then by way of exception to Article 77 of the Revised Penal
Code and to subserve the purpose of Section 20, as amended, each of the aforesaid
component penalties shall be considered as a principal penalty depending on the
quantity of the drug involved. Thereafter, applying the modifying circumstances
pursuant to Article 64 of the Revised Penal Code, the proper period of the
component penalty shall then be fixed. To illustrate, if by the quantity of the drugs
involved (e.g., marijuana below 250 grams) the proper principal penalty should
be prision
586
586 SUPREME COURT REPORTS ANNOTATED
People vs. Simon
correccional, but there is one mitigating and no aggravating circumstance, then the
penalty to be imposed should be prision correccional in its minimum period. Yet,
the majority opinion puts a limit to such a rule. It declares:
“The Court rules, therefore, that while modifying circumstances may be
appreciated to determine the periods of the corresponding penalties, or even reduce
the penalty by degrees, in no case should such graduation of penalties reduce the
imposable penalty beyond or lower thanprision correccional. It is for this reason
that the three component penalties in the second paragraph of Section 20 shall each
be considered as an independent principal penalty, and that the lowest penalty
should in any event be prision correccional in order not to depreciate the sriousness
of drug offenses.”
Simply put, this rule would allow the reduction from reclusion temporal—if it is the
penalty to be imposed on the basis of the quantity of the drugs involved—by two
degrees, or to prision correccional, if there are two or more mitigating
circumstances and no aggravating circumstance is present (paragraph 5, Article
64, Revised Penal Code) or if there is a privileged mitigating circumstance of, say,
minority (Article 68, Revised Penal Code), or under circumstances covered by
Article 69 of the Revised Penal Code. Yet, if the proper penalty to be imposed
is prision mayor, regardless of the fact that a reduction by two degrees is proper, it
should only be reduced by one degree because the rule does not allow a reduction
beyond prision correccional. Finally, if the proper penalty to be imposed is prision
correccional, no reduction at all would be allowed. I find the justification for the
rule to be arbitrary and unfair. It is arbitrary because within the same second
paragraph involving the same range of penalty, we both allow and disallow the
application of Article 64(5), Article 68, and Article 69 of the Revised Penal Code.
The reason for the disallowance, viz., in order not to depreciate the seriousness of
drug offenses, is unconvincing because Section 20 of the Dangerous Drugs Act, as
amended by R.A. No. 7659, has in fact “depreciated” the serious-ness of drug
offenses by providing quantity as basis for the determination of the proper penalty
and limiting fine only to cases punishable by reclusion perpetua to death. It is
CRIMINAL LAW | PENALTIES
unfair because an accused who is found guilty of possessing MORE dangerous
drugs—say 500 to
587
VOL. 234, JULY 29, 1994 587
People vs. Simon
749 grams of marijuana, in which case the penalty to be imposed would be reclusion
temporal—may only be sentenced to six (6) months and one (1) day of prision
correccional minimum because of privileged mitigating circum-stances. Yet, an
accused who is found guilty of possession of only one (1) gram of marijuana—in
which case the penalty to be imposed is prision correccional—would not be entitled
to a reduction thereof even if he has the same number of privileged mitigating
circumstances as the former has.
Also, if the privileged mitigating circumstance happens to be the minority of
the accused, then he is entitled to the reduction of the penalty as a matter of right
pursuant to Article 68 of the Revised Penal Code, which reads:
“ART.68.Penalty to be imposed upon a person under eighteen years of age.—When
the offender is a minor under eighteen years and his case is one coming under the
provisions of the paragraph next to the last of Article 80 of this Code, the following
rules shall be observed:
1. 1.Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he
acted with discernment, a discretionary penalty shall be imposed, but
always lower by two degrees at least than that prescribed by law for the
crime which he committed.
2. 2.Upon a person over fifteen and under eighteen years of age the penalty
next lower than that prescribed by law shall be imposed, but always in
the proper period.”
I do not think that as to the second paragraph of Section 20 of the Dangerous Drugs
Act, as amended by Section 17 of R.A. No. 7659, we can be at liberty to apply the
Revised Penal Code in one aspect and not to apply it in another.
Appealed judgment affirmed with modification.
Note.—In prosecutions for illegal sale of marijuana what is material is the
proof that the selling transaction transpired coupled with the presentation in court
of the corpus delicti as evidence (People vs. Mariano, 191 SCRA 136).
———o0o———
VOL.340,SEPTEMBER18,2000 497
Lim vs. People
G.R. No. 130038. September 18, 2000.*
ROSA LIM, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
Criminal Law; Bouncing Checks Law; Section 2 creates a presumption juris
tantum that the second element prima facie exists when the first and third elements
P a g e 101 | 279
of the offense are present—B.P. No. 22, Section 2 creates a presumption juris
tantum that the second element prima facie exists when the first and third
elements of the offense are present. If not rebutted, it suffices to sustain a
conviction.
Same; Same; The gravamen of Batas Pambansa No. 22 is the act of making
and issuing a worthless check or one that is dishonored upon its presentment for
payment.—The gravamen of B.P. No. 22 is the act of making and issuing a
worthless check or one that is dishonored upon its presentment for payment. And
the accused failed to satisfy the amount of the check or make arrangement for its
payment within five (5) banking days from notice of dishonor. The act is malum
prohibitum, pernicious and inimical to public welfare. Laws are created to achieve
a goal intended and to guide and prevent against an evil or mischief. Why and to
whom the check was issued is irrelevant in determining culpability. The terms and
conditions surrounding the issuance of the checks are also irrelevant.
Same; Same; Unlike in estafa, under Batas Pambansa No. 22, one need not
prove that the check was issued in payment of an obligation, or that there was
damage.—Unlike in estafa, under B.P. No. 22, one need not prove that the check
was issued in payment of an obligation, or that there was damage. The damage
done is to the banking system.
_____________
*EN BANC.
498
498 SUPREME COURT REPORTS ANNOTATED
Lim vs. People
Same; Same; Penalty; The penalty of fine only for violation of BP 22 is to
redeem valuable human material and to prevent unnecessary deprivation of
personal liberty of the accused.—In Vaca v. Court of Appeals, we held that in
determining the penalty to be imposed for violation of B.P. No. 22, the philosophy
underlying the Indeterminate Sentence Law applies. The philosophy is to redeem
valuable human material, and to prevent unnecessary deprivation of personal
liberty and economic usefulness with due regard to the protection of the social
order. There, we deleted the prison sentence imposed on petitioners. We imposed
on them only a fine double the amount of the check issued.
APPEAL from a decision of the Regional Trial Court of Cebu City, Br. 23.
The facts are stated in the opinion of the Court.
Zosa & Quijano Law Offices for petitioner.
The Solicitor General for the People.
PARDO,J.:
The case is an appeal from the decision1 of the Court of Appeals affirming in
toto that of the Regional Trial Court, Cebu City.2 Both courts found petitioner Rosa
CRIMINAL LAW | PENALTIES
Lim guilty of twice violating Batas Pambansa Bilang 22 3 and imposing on her two
one-year imprisonment for each of the two violations and ordered her to pay two
fines, each amounting to two hundred thousand pesos (P200,000.00). The trial
court also ordered petitioner to return to Maria Antonia Seguan, the jewelry
received or its value with interest, to pay moral damages, attorney’s fees and costs. 4
We state the relevant facts.5
On August 25, 1990, petitioner called Maria Antonia Seguan by phone.
Petitioner thereafter went to Seguan’s store. She bought
________________
1 In CA-G.R. CR No. 14641, promulgated on October 15, 1996, De la
Rama, J., ponente, Cui and Montenegro, JJ., concurring.
2 In Criminal Case Nos. CBU 22127 and 22128.
3 Bouncing Checks Law, hereinafter referred to as “B.P. 22.”
4 Rollo, p. 94.
5 Rollo, p. 12.
499
VOL.340,SEPTEMBER18,2000 499
Lim vs. People
various kinds of jewelry—Singaporean necklaces, bracelets and rings worth
P300,000.00. She wrote out a check dated August 25, 1990, payable to “cash” drawn
on Metrobank in the amount of P300,000.006 and gave the check to Seguan.
On August 26, 1990, petitioner again went to Seguan’s store and purchased
jewelry valued at P241,668.00. Petitioner issued another check payable to “cash”
dated August 16, 1990 drawn on Metro-bank in the amount of P241,668.00,7 and
sent the check to Seguan through a certain Aurelia Nadera.
Seguan deposited the two checks with her bank. The checks were returned with
a notice of dishonor. Petitioner’s account in the bank from which the checks were
drawn was closed.
Upon demand, petitioner promised to pay Seguan the amounts of the two
dishonored checks. She never did.
On June 5, 1991,8 an Assistant City Prosecutor of Cebu filed with the Regional
Trial Court, Cebu City, Branch 23 two informations against petitioner. Both
informations were similarly worded, The difference is that in Criminal Case No.
22128, the bouncing check is Metro Bank Check No. CLN 094244392 dated August
26, 1990 in the amount of P241,668.00. The informations read:9
Criminal Case No. 22127—
“The undersigned Prosecutor I of the City of Cebu, accuses ROSA LIM for
VIOLATION OF BATAS PAMBANSA BILANG 22 committed as follows:
“That on or about the 20th day of August, 1990, and for sometime subsequent
thereto, in the City of Cebu Philippines, and within the jurisdiction of this
Honorable Court, the said accused, knowing at the time of issue of the check she
does not have sufficient funds in the drawee bank for the payment of such check in
P a g e 102 | 279
full upon its presentment, with deliberate intent, with intent of gain and of causing
damage, did then and there issue, make or draw Metro Bank Check No. 1 CLN
094244391 dated August 25, 1990 in the amount of P300,000.00 payable to Maria
Antonia
_____________
6 Rollo, p. 89.
7 Ibid.
8 Rollo, p. 94.
9 Rollo, pp. 80-81.
500
500 SUPREME COURT REPORTS ANNOTATED
Lim vs. People
Seguan which check was issued in payment of an obligation of said accused, but
when the said check was presented with the bank the same was dishonored for
reason “Account Closed” and despite notice and demands made to redeem or make
good said check, said accused failed and refused, and up to the present time still
fails and refuses to do so, to the damage and prejudice of said Maria Antonia
Seguan in the amount of P300,000.00, Philippine Currency.
“CONTRARY TO LAW.”
Criminal Case No. 22128—
“The undersigned Prosecutor I of the City of Cebu, accuses ROSA LIM for
VIOLATION OF BATAS PAMBANSA BILANG 22, COMMITTED AS FOLLOWS:
“That on or about the 20th day of August, 1990, and for sometime subsequent
thereto, in this City of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, knowing at the time of issue of the check she
does not have sufficient funds in or credit with the drawee bank for the payment of
such check in full upon its present-ment, with deliberate intent, with intent of gain
and of causing damage, did then and there issue, make or draw Metro Bank Check
No. CLN-094244392 dated August 26, 1990 in the amount of P241,668.00 payable
to Maria Antonia Seguan which check was issued in payment of an obligation of
said accused, but when the said check was presented with the bank, the same was
dishonored for reason “Account Closed” and despite notice and demands made to
redeem or make good said check, said accused failed and refused, and up to the
present time still fails and refuses to do so, to the damage and prejudice of said
Maria Antonia Seguan in the amount of P241,668.00, Philippine Currency.
“CONTRARY TO LAW.
“Cebu City, Philippines, 30 May 1991.”10
Upon arraignment, petitioner pleaded “not guilty” in both cases,
After due trial, on December 29, 1992, the trial court rendered a decision in the
two cases convicting petitioner, to wit:11
“WHEREFORE, prosecution having established the guilt of the accused beyond
reasonable doubt, judgment is hereby rendered convicting
CRIMINAL LAW | PENALTIES
________________
10Petition, Annex “A,” Rollo, pp. 80-81.
11Rollo, pp. 93-94.
501
VOL.340,SEPTEMBER18,2000 501
Lim vs. People
the accused, Rosa Lim and sentencing her in Criminal Case No. CBU-22127, to
suffer the penalty of imprisonment for a period of ONE (1) YEAR and a fine of TWO
HUNDRED THOUSAND (P200,000.00) PESOS and in Criminal Case No. CBO-
22128, the same penalty of imprisonment for ONE YEAR and fine of TWO
HUNDRED THOUSAND (P200,000.00) is likewise imposed.
“The accused is hereby ordered to pay private complainant Maria Antonia
Seguan, the sum of P541,668.00 which is the value of the jewelries bought by the
accused from the latter with interest based on the legal rate to be counted from
June 5, 1991, the date of the filing of the informations, or return the subject
jewelries; and further to pay private complainant:
1. “(a)The sum of P50,000.00 as moral damages in compensation for the
latter’s worries with the freezing of her business capital involved in these
litigated transactions;
2. “(b)The sum of P10,000.00 for attorney’s fees, plus costs.
“SO ORDERED.”12
In due time, petitioner appealed to the Court of Appeals.13
On October 15, 1996, the Court of Appeals rendered a decision, dismissing the
appeal in this wise:
“WHEREFORE, premises considered, the appeal is DISMISSED. The decision
appealed from is AFFIRMED in toto. “SO ORDERED.”14
Hence, this appeal.15
In this appeal, petitioner argues that she never knew Seguan and much more,
had any “transaction” with her. According to petitioner, she issued the two checks
and gave them to Aurelia Nadera, not to Seguan. She gave the two checks to
Aurelia Nadera from whom she got two sets of jewelry, as a “security arrangement”
or “guarantee” that she would return the jewelry received if she would not be able
to sell them.16
___________________
12 Petition, Annex “A,” Rollo, pp. 80-94.
13 Docketed as CA-G.R. CR No. 14641.
14 Rollo, pp. 10-20.
15 Petition for Review, Rollo, pp. 25-39.
16 Rollo, p. 13.
502
P a g e 103 | 279
502 SUPREME COURT REPORTS ANNOTATED
Lim vs. People
The appeal has no merit.
The elements of B.P. Blg. 22 are:17
1. “(1)The making, drawing and issuance of any check to apply for account or
for value;
2. “(2)The knowledge of the maker, drawer, or issuer that at the time of issue
he does not have sufficient funds in or credit with the drawee bank for
the payment of such check in full upon its presentment; and
3. “(3)The subsequent dishonor of the check by the drawee bank for
insufficiency of funds or credit or dishonor for the same reason had not
the drawer, without any valid cause, ordered the bank to stop payment.”
Petitioner never denied issuing the two checks. She argued that the checks were
not issued to Seguan and that they had no preexisting transaction. The checks were
issued to Aurelia Nadera as mere guarantee and as a security arrangement to cover
the value of jewelry she was to sell on consignment basis.18 These defenses cannot
save the day for her. The first and last elements of the offense are admittedly
present. To escape liability, she must prove that the second element was absent,
that is, at the time of issue of the checks, she did not know that her funds in the
bank account were insufficient. She did not prove this.
B.P. No. 22, Section 2 creates a presumption juris tantum that the second
element prima facie exists when the first and third elements of the offense are
present.19 If not rebutted, it suffices to sustain a conviction.20
__________________
Francisco T. Sycip, Jr. v. Court of Appeals, G.R. No. 125059, March 17,
17
2000, 328 SCRA 447.
18 Rollo, p. 13.
19 B.P. 22, Section 2 provides, “Sec. 2. Evidence of knowledge of insufficient
funds—The making, drawing and issuance of a check payment of which is refused
by the drawee because of insufficient funds in or credit with such bank, when
presented within ninety (90) days from the date of the check, shall be prima
facie evidence of knowledge of such insufficiency of funds or credit unless such
maker or drawer pays the holder thereof the amount due thereon, or makes
arrangements for payment in full by the drawee of such check within five (5)
banking days after receiving notice that such check has not been paid by the
drawee.
20 Francisco T. Sycip, Jr. v. Court of Appeals, supra, Note 17.
503
VOL.346,SEPTEMBER18,2000 503
Lim vs. People
CRIMINAL LAW | PENALTIES
The gravamen of B.P. No. 22 is the act of making and issuing a worthless check or
one that is dishonored upon its presentment for payment. And the accused failed
to satisfy the amount of the check or make arrangement for its payment within five
(5) banking days from notice of dishonor.21 The act is malum
prohibitum, pernicious and inimical to public welfare.22 Laws are created to
achieve a goal intended and to guide and prevent against an evil or mischief.23 Why
and to whom the check was issued is irrelevant in determining culpability. The
terms and conditions surrounding the issuance of the checks are also irrelevant.24
Unlike in estafa,25 under B.P. No. 22, one need not prove that the check was
issued in payment of an obligation, or that there was damage. The damage done is
to the banking system.26
InUnited States v. Go Chico, we ruled that in acts mala prohib-ita, the only
inquiry is, “has the law been violated?” When dealing with acts mala prohibita27—
“.. . it is not necessary that the appellant should have acted with criminal intent.
In many crimes, made such by statutory enactment, the intention of the person
who commits the crime is entirely immaterial. This is necessarily so. If it were not,
the statute as a deterrent influence would be substantially worthless. It would be
impossible of execution. In many cases, the act complained of is itself that which
produces the pernicious effect the statute seeks to avoid. In those cases the
pernicious effect is produced with precisely the same force and result whether the
intention of the person performing the act is good or bad.”
This case is a perfect example of an act mala prohibita. Petitioner issued two
checks. They were dishonored upon presentment for payment due to the fact that
the account was closed. Petitioner
__________________
21 King v. People, G.R. No. 131540, December 2, 1999, 319 SCRA 654.
22 Francisco T. Sycip, Jr. v. Court of Appeals, supra, Note 17.
23 Codoy v. Calugay, 312 SCRA 333, 351 (1999).
24 Llamado v. Court of Appeals, 270 SCRA 423 (1997).
25 People v. Hernando, G.R. No. 125214, October 28, 1999, 317 SCRA 617.
26 Vaca v. Court of Appeals, 298 SCRA 658 (1998).
27 United States v. Go Chico, 14 Phil. 128, 131 (1909).
504
504 SUPREME COURT REPORTS ANNOTATED
Lim vs. People
failed to rebut the presumption that she knew her funds were insufficient at the
time of issue of the checks. And she failed to pay the amount of the checks or make
arrangement for its payment within five (5) banking days from receipt of notice of
dishonor. B.P. No. 22 was clearly violated. Hoc quidem per quam durum est sed ita
lex scripta est. The law may be exceedingly hard but so the law is written.
However, we resolve to modify the penalty imposed on petitioner. B.P. No. 22
provides a penalty of “imprisonment of not less than thirty days but not more than
one year or a fine of not less than, but not more than double, the amount of the
P a g e 104 | 279
check which fine shall in no case exceed two hundred thousand pesos, or both such
fine and imprisonment at the discretion of the Court.”28
InVaca v. Court of Appeals,29 we held that in determining the penalty to be
imposed for violation of B.P. No. 22, the philosophy underlying the Indeterminate
Sentence Law applies. The philosophy is to redeem valuable human material, and
to prevent unnecessary deprivation of personal liberty and economic usefulness
with due regard to the protection of the social order. There, we deleted the prison
sentence imposed on petitioners. We imposed on them only a fine double the
amount of the check issued. We considered the fact that petitioners brought the
appeal, believing in good faith, that no violation of B.P. No. 22 was committed,
“otherwise, they would have simply accepted the judgment of the trial court and
applied for probation to evade prison term.”30 We do the same here. We believe such
would best serve the ends of criminal justice.
Consequently, we delete the prison sentences imposed on petitioner. The two
fines imposed for each violation, each amounting to P200,000.00 are appropriate
and sufficient.
The award of moral damages and order to pay attorney’s fees are deleted for
lack of sufficient basis.
________________
28 Batas Pambansa Blg. 22, Section 1.
29 Vaca v. Court of Appeals, supra, Note 26.
30 Vaca v. Court of Appeals, supra, at p. 664.
505
VOL.340,SEPTEMBER18,2000 505
Lim vs. People
WHEREFORE, we AFFIRM with modification the decision of the Court of
Appeals.31 We find petitioner Rosa Lim guilty beyond reasonable doubt of two
counts of violation of Batas Pambansa Bilang 22. We SET ASIDE the sentence of
imprisonment and hereby sentence her only to pay a fine of P200,000.00 in each
case, with subsidiary imprisonment in case of insolvency or non-payment not to
exceed six (6) months.32 We DELETE the award of moral damages and attorney’s
fees. The rest of the judgment of the trial court as affirmed by the Court of Appeals
shall stand. Costs against petitioner.
SO ORDERED.
Davide,
Jr. (C.J.), Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Purisim
a, Buena, Gonzaga-Reyes and De Leon, Jr., JJ., concur.
Quisumbing, J., In the result.
Ynares-Santiago, J., On leave.
Judgment affirmed with modification. Sentence of imprisonment set aside,
moral damages and attorney’s fees deleted.
Note.—What the law punishes is the issuance of a bouncing check and not the
purpose for which it was issued nor the terms and conditions relating to its
CRIMINAL LAW | PENALTIES
issuance—the mere act of issuing a worthless check being malum prohibitum.
(Llamado vs. Court of Appeals, 270 SCRA 423 [1997])
——o0o——
VOL. 267, FEBRUARY 6, 1997 581
People vs. Gabres
G.R. Nos. 118950–54. February 6, 1997 *
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUCRECIA
GABRES, also known as MONA GABRES, accused-appellant.
Criminal Law; Labor Law; Estafa; Illegal Recruitment; Accused-appellant
has indeed committed estafa by means of deceit punishable under Article 315(2)(a)
of the Revised Penal Code.—Accused-appellant has indeed committed estafa by
means of deceit punishable under Article 315(2)(a) of the Revised Penal Code. The
trial court’s brief ratiocination is well taken; viz: “There is no dispute that damages
have been incurred by the complainants. They parted with their money in
consideration of deployment for work in a foreign country, but which unfortunately
remains unrestituted despite the failure in that regard of the person or persons
who promised that they will be sent off to work abroad.”
_______________
*FIRST DIVISION.
582
582 SUPREME COURT REPORTS ANNOTATED
People vs. Gabres
Same; Same; Same; Same; Accused-appellant is likewise guilty of illegal
recruitment in large scale.—Accused-appellant is likewise guilty of illegal
recruitment in large scale, an offense under Article 38(b), in relation to Article 39,
of the Labor Code.
Same; Same; Same; Same; Indeterminate Sentence Law; The penalty next
lower should be based on the penalty prescribed by the Code for the offense without
first considering any modifying circumstance attendant to the commission of
the crime.—Under the Indeterminate Sentence Law, the maximum term of the
penalty shall be “that which, in view of the attending circumstances, could be
properly imposed” under the Revised Penal Code, and the minimum shall be
“within the range of the penalty next lower to that prescribed” for the offense. The
penalty next lower should be based on the penalty prescribed by the Code for the
offense, without first considering any modifying circumstance attendant to the
commission of the crime. The determination of the minimum penalty is left by law
to the sound discretion of the court and it can be anywhere within the range of the
penalty next lower without any reference to the periods into which it might be
subdivided. The modifying circumstances are considered only in the imposition of
the maximum term of the indeterminate sentence.
P a g e 105 | 279
APPEAL from a decision of the Regional Trial Court of La Trinidad, Benguet, Br.
10.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Antonio F. Angluben for accused-appellant.
VITUG, J.:
Five counts of estafa were filed against the spouses Perlito (Lito) and Lucrecia
(Mona) Gabres and, except for the names of the private complainants and the
amounts involved, the text in each of the corresponding informations is
substantially the same in all; viz:1
________________
1Criminal Case No. 93-CR-1800.
583
VOL. 267, FEBRUARY 6, 1997 583
People vs. Gabres
The undersigned accuses SPOUSES LITO and LUCRECIA GABRES also known
as MONA GABRES of the crime of Estafa, defined and penalized under Article 315,
paragraph 2(a) of the Revised Penal Code, committed as follows:
That on or about the months of April, 1992 up to July, 1992 and sometime
subsequent thereto, at Acop, Municipality of Tublay, Province of Benguet,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to defraud and by means of deceit through false
representations and pretenses made by them prior to or simultaneous with the
commission of the fraud, did then and there willfully, unlawfully and feloniously
defraud JOEL PANIDA, by then and there representing themselves as a duly
authorized or licensed recruiters for overseas employment, when in truth and in
fact they were not, thereby inducing the said person to give to them the sum of
FORTY-FIVE THOUSAND PESOS (P45,000), Philippine Currency, for placement
abroad, which amount they misappropriated for their own use and benefit and then
either fail or refuse and continue to fail or refuse to return the same despite
repeated demands, all to the damage and prejudice of said person in the total sum
aforesaid and other consequential damages.
“Contrary to Law."2
In addition, the spouses were charged with having engaged in large scale illegal
recruitment; thus:
“The undersigned accuses Lito Gabres and Lucrecia Gabres also known as Mona
Gabres of Illegal Recruitment, defined under par. 1, Art. 38 of P.D. 442, as
amended, otherwise known as The Labor Code of the Philippines, and penalized
under Art. 39(b) of the same Code, as amended by P.D. 2018, committed as follows:
“That on or about the month of April, 1992 up to July, 1992 and sometime
subsequent thereto, at the Municipality of Tublay, Province Of Benguet,
CRIMINAL LAW | PENALTIES
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually aiding each other, did then and
there willfully, unlawfully and knowingly recruit ORETA NISPEROS, TARCISO
DACSIG, JULIUS AOAY, JOEL PANIDA and RONALD MIRABUENO for
overseas employment, by then and there misrepresenting themselves as a duly
authorized or licensed recruiters when
_______________
2Rollo, pp. 46–47.
584
584 SUPREME COURT REPORTS ANNOTATED
People vs. Gabres
in truth and in fact they were not and by reason of said misrepresentations, they
were able to obtain from the said complainants the aggregate sum of ONE
HUNDRED EIGHTY FIVE THOUSAND PESOS (P185,000.00) Philippine
Currency, all to the damage and prejudice of the above-named complainants in the
total aforesaid sum and other consequential damages.
“That such illegal recruitment having been committed by in large scale, it
constitutes economic sabotage.
“Contrary to Law."3
The six cases were tried, preceded by the arraignment of the accused, jointly.
The following version of the case is culled from the evidence given by the
prosecution.
Some time in March of 1992, Oreta Nisperos heard that the accused couple were
recruiting factory workers for abroad. With great anticipation, Nisperos,
accompanied by her son, Ramil, and her neighbors, Joel Panida and Julius
Aoay,4 went to the residence of the Gabreses in Bauang, La Union. After the group
was introduced by Nisperos’ cousin, Rosario Zapanta, the spouses confirmed their
being engaged in the recruitment of factory workers for Korea. A “package deal”
was reached. Each applicant was to be charged a placement fee of P45,000.00. The
parties agreed to meet again on 12 April 1992 at the Dr. Yares Clinic in Baguio
City. On the appointed date and time, Mona Gabres alone showed up to meet with
the applicants. The latter were joined, in this meeting, by Tarciso Dacsig, Jr.,
Jonard Dulay and Ronaldo Mirabueno, who all promised to also come up with the
required “placement fees.”
At the respective dates stated below, the accused spouses received the following
amounts from each of the applicants; thus:
_______________
3Rollo, p. 47.
4All residents of Acop, Tublay, Benguet.
585
VOL. 267, FEBRUARY 6, 1997 585
P a g e 106 | 279
 People vs. Gabres
5Rollo, pp. 44–45.
586
“DATE OF PAYMENT NAME OF PAYOR AMOUNT
586 SUPREME COURT REPORTS ANNOTATED
1. April 26,1992 —Oreta Nisperos —P5,000.00
People vs. Gabres
(for Ramil Nisperos) (No receipt)
On 03 July 1992, the accused spouses assured Ramil Nisperos, Joan Nisperos, Joel
—Joel Panida —P5,000.00 Panida, Tarciso Dacsig, Jr., Julius Aoay, Jonard Dulay and Ronaldo Mirabueno
(Exh. ‘A'—CR No. 1800) that they could expect within a few days their departure for abroad. The promise
was not fulfilled. Then, in order to appease the applicants, the spouses explained
—Tarciso Dacsig, Jr. —P5,000.00
that it was only the call of the Korean employer, Mr. Kim, that was being awaited
(Exh. ‘A'—CR No. 1803) so as to firm up the flight schedule. The call never came. After a series of follow-
2. May 1,1992 —Julius Aoay —P5,000.00 ups, the applicants were directed by the spouses to confer with the latter’s supposed
associate in Manila, one Rebecca (Vicky) Naval, who was said to be managing the
(Exh. ‘A'—CR No. 1802)
Bachs and Cochs Travel Agency. Naval initially denied any association with the
3. May 5, 1992 —Tarciso Dacsig, Jr. —P5,000.00 Gabreses; she later, however, told the group that she had been engaged by the
(Exh. ‘B'—CR No. 1803) spouses to process the travel documents, plane tickets and flight bookings of the
applicants, and that the required visas were already being applied for.
—Oreta Nisperos —P5,000.00
After several more months of waiting and still getting nowhere, the applicants
(for Ramil Nisperos) (No receipt) finally demanded the return of their money from the spouses. Each applicant was
4. June 7, 1992 —Oreta Nisperos —P5,000.00 issued four checks, each for P10,000.00, but which, when presented for payment,
all bounced.6
(for Ramil Nisperos) (Exh. ‘B'—CR No. 1800)
The would-be overseas workers sought the assistance of the Philippine
—Joel Panida —P5,000.00 Overseas Employment Administration-Cordillera Administrative Region (“POEA-
(Exh. ‘B'—CR No. 1800) CAR") which certified, through Atty. Justinian O. Lichnachan, that the accused
spouses were “not licensed or authorized to recruit workers for overseas
—Tarciso Dacsig, Jr. —P5,000.00
employment within the City of Baguio or any part of the region."7 Forthwith, a joint
(Exh. ‘B'—CR No. 1800) affidavit-complaint was filed with the Benguet Provincial Prosecutor’s Office that
—Julius Aoay —P5,000.00 became the basis of the criminal informations, aforesaid, against the Gabreses.8
(Exh. ‘B'—CR No. 1800)
________________
5, June 10, 1992 —Oreta Nisperos —P30,000.00
(for Ramil Nisperos) (Exh. ‘B'—CR No. 1801) 6 Apparently, though, it was Vicky Naval who issued the checks (Julius Aoay,

6. June 17, 1992 —Oreta Nisperos —P5,000.00 TSN, 15 June 1994, pp. 3–4).
7 Rollo, p. 46.
(for Joan Nisperos) (Exh. ‘C'—CR No. 1801) 8 In his resolution, dated 12 August 1993, the investigating prosecutor

7. June 18, 1992 —Oreta Nisperos —P5,000.00 recommended the exoneration of Rebecca Naval on the
(for Jonard Dulay) (Exh. ‘D'—CR No. 1801) 587
8, July 3, 1992 —Joel Panida —. P35,000.00 VOL. 267, FEBRUARY 6, 1997 587
(Exh. ‘C'—CR No. 1800) People vs. Gabres
Lito Gabres managed to elude arrest, and the trial proceeded only against his wife.
—Tarciso Dacsig, Jr. —P25,000.00
Mona Gabres pleaded “not guilty” to each of the accusations. She denied any
(Exh. ‘D'—CR No. 1803) involvement in her husband’s activities.
—Julius Aoay —P30,000.00 The defense sought to establish that Mona was a mere fish vendor in Bauang,
La Union, and that this work demanded her full attention. Her husband used to be
(Exh. ‘C'—CR No. 1802)"5
an overseas contract worker himself and, thereafter, a liaison officer for Caro Fran
Recruitment Agency, whose job included the processing and following-up of travel
_______________
CRIMINAL LAW | PENALTIES P a g e 107 | 279
papers with the Department of Foreign Affairs. In July, 1992, her husband
introduced her to Vicky Naval who requested Mona to safekeep the collection of
placement fees from the applicants. She admitted having joined her husband, but
only once, in collecting the payments made by private complainants on 03 July 1992
at Acop, Tublay, Benguet, which was duly remitted to Naval.
In a decision, dated 14 December 1994, Judge Romeo A. Brawner 9 (now
Associate Justice of the Court of Appeals) rendered judgment that concluded:
“WHEREFORE, all premises considered, judgment is hereby rendered as follows:
1. “1.In Criminal Case No. 93-CR-1800, this Court finds accused Lucrecia
‘Mona’ Gabres GUILTY beyond reasonable doubt of the offense charged
and hereby sentences her to suffer an indeterminate sentence of
imprisonment of four (4) years, two (2) months and one (1) day of prision
correccional as MINIMUM to eight (8) years and ten (10) months of
prision mayor as MAXIMUM;
2. “2.In Criminal Case No. 93-CR-1801, this Court finds accused Lucrecia
‘Mona’ Gabres GUILTY beyond reasonable doubt
of the offense charged and hereby sentences her to suffer an indeter-
minate sentence of imprisonment of five 15) years, two (2) months and
one (1) day of prision correccional as MINIMUM to nine (9) years and ten
(10) months of prision mayor as MAXIMUM;
________________
ground that her liability was purely civil in nature. The resolution was
approved by the Provincial Prosecutor (Records, p. 13).
9 Regional Trial Court, Branch 10, La Trinidad, Benguet.
588
588 SUPREME COURT REPORTS ANNOTATED
People vs. Gabres
1. “3.In Criminal Case No. 93-CR-1802, this Court finds accused Lucrecia
‘Mona’ Gabres GUILTY beyond reasonable doubt of the offense charged
and hereby sentences her to suffer an indeterminate sentence of
imprisonment of two (2) years, eight (8) months and one (1) day of prision
correccional as MINIMUM to seven (1} years of prision mayor as
MAXIMUM;
2. “4.In Criminal Case No. 93-CR-1803, this Court finds accused Lucrecia
‘Mona’ Gabres GUILTY beyond reasonable doubt of the offense charged
and hereby sentences her to suffer an indeterminate sentence of
imprisonment of two (2) years, eight (8) months and one (1) day of Prision
correccional as MINIMUM to seven (7) years of prision mayor as
MAXIMUM;
CRIMINAL LAW | PENALTIES
3. “5.In Criminal Case No. 93-CR-1804, this Court finds accused Lucrecia
‘Mona’ Gabres NOT GUILTY of the offense charged due to insufficiency
of evidence and hereby acquits her with proportionate costs de oficio;
4. “6.In Criminal Case No. 93-CR-1805, this Court finds accused Lucrecia
‘Mona’ Gabres GUILTY beyond reasonable doubt of the crime charged
and hereby sentences her to suffer the penalty of life imprisonment and
to pay a fine of ONE HUNDRED THOUSAND PESOS (P100,000.00).
“On the civil liability in the estafa cases, accused Lucrecia ‘Mona’ Gabres is hereby
ordered to pay to Joel Panida, Oreta Nisperos, Julius Aoay and Tarciso Dacsig, Jr.
the amounts of P45,000.00, P55,000.00, P40,000.00 and P40,000.00, respectively,
as actual damages.
“Proportionate costs against the accused Lucrecia ‘Mona’ Gabres.
“In the service of her sentence, the accused shall be credited to the full term of
her preventive imprisonment as provided for by Article 29 of the Revised Penal
Code, provided the conditions set forth therein for the enjoyment of the same have
been met.
“With respect to accused Perlito ‘Lito’ Gabres, let these cases be sent to the files
without prejudice to their revival as soon as he shall have been arrested and
brought to the jurisdiction of this Court.
“In order that he may not escape the clutches of the law, let Warrants of Arrest
issue addressed to the PNP Station Commander, Bauang, La Union and the
National Bureau of Investigation (NBI), Manila. Further, the Commission of
Immigration and Deportation
589
VOL. 267, FEBRUARY 6, 1997 589
People vs. Gabres
(CID), Manila is ordered to include the name of accused Perlito ‘Lito’ Gabres in its
Hold Departure List.
“SO ORDERED."10
Mona Gabres appealed the decision to this Court Appellant, in main, would wish
to sway the Court into thinking that the real culprit was Lito Gabres and that the
complaining witnesses gave stress over her participation only because her husband
could not be apprehended.
The Court, regrettably, must sustain the conviction.
The testimony given by each of the private complainants unquestionably would
point to both the spouses to be the culprits in an elaborate scheme to defraud the
hopeful applicants for overseas work. The Court quotes from the transcript of the
proceedings.
Testimony of Oreta Nisperos:
“ATTY. PAOAD:
“Now, Madam witness, you said a while ago that it was the later part of March, 1992
that you and your cousin went to see the two accused in Bauang, what transpired
then?
P a g e 108 | 279
“A They told us that they were recruiting factory workers for Korea. “Now, how much all in all are the two accused asking you to pay in consideration of
“Q What else happened? the same in Korea?
“A They told us that if my children are interested we will see each other in Baguio City “A They were asking P45,000.00.
on April 12. “Q Now, you said that you agreed to meet each other again on April 26,1992, what
“Q What was your agreement as to where shall you meet each other and the date. happened on that date?
“A I suggested that we will see each other at the clinic of Dr. Yares. “A They came at our residence, both of them.
“Q Where is the clinic of Dr. Yares located? “Q The two accused?
“A It is located at Harrison Road, Baguio City. “A Yes, ma’am.
“Q On that particular of April 12, 1992 were you able to meet each other? “Q Now, when the two accused came to your residence on April 26, what happened?
“A Yes, ma’am. “A My son paid an amount of P5,000.00.
“Q Who were your companions? “Q Who particularly paid for your son?
“A I paid for my son, ma’am.
_______________
“Q Aside from you and your son who else were present?
10Rollo, pp. 53–54. “A Also present were Joel Panida, Tarcisio Dacsig.
590 “Q How about Julius Aoay?
590 SUPREME COURT REPORTS ANNOTATED “A He was also present, ma’am.
People vs. Gabres “Q You said a while ago, Madam witness, that on April 26 you paid P5,000.00 for your
“A My companions were Julius Aoay, Joel Panida and my son Ramil Nisperos. son, what is your basis in saying that you paid P5,000.00 on that day?
“Q Who from the side of the accused came to see you on April 12,1992. “A They issued us a receipt, ma’am.
“A Mrs. Mona Gabres, ma’am. 591
“Q How about the other accused, Lito Gabres. VOL. 267, 591

“A He was not there, ma’am. FEBRUARY 6,

“Q Now, what transpired on April 12,1992? 1997

“A They told us that if we are interested we will pay an advance payment of P5,000.00 People vs. Gabres
each. “Q Who received the payment?
“Q For each applicant? “A It was Mona Gabres, ma’am.
“A Yes, ma’am. “Q Who issued the receipt?
“Q What else did you talk about? “A It was Lito Gabres who was making the receipt, ma’am.
“A They told us that if we have money we will see each other on April 26. “x x x xxx x x x.
“Q Where will you see each other on April 26? “Q Now, after April 26,1992 what happened?
“A I told her that we will see at Acop, Tublay because they knew where we are. “A They told us that they will go back at our residence on May 1 and if
“Q What particular place in Acop? the other applicants will have their money at that time they will
“A At our residence, sir. process their papers.
“Atty. PAOAD: “Q Who paid on May 1,1992?
“A Julius Aoay, ma’am.
“ATTY. PAOAD:
CRIMINAL LAW | PENALTIES P a g e 109 | 279
 “Who received the payment? “A Yes, it is.
“A Both the two accused, ma’am. One will receive the amount and the “Q Could you tell us who wrote this receipt?
other will issue the receipt."11 “A It was Mona Gabres, ma’am.
Testimony of Tarciso Dacsig, Jr.: “Q How about Lito Gabres what was his participation?
“Q Now, to whom did you give this P5,000.00? “A He was the one counting the money."13
“A I handed it to Aunt Oreta who gave it to Mona Gabres, Ma’am. In the scheduled meeting on 12 April 1992, it was only accused-appellant who, in
fact, showed up to meet with the applicants for overseas work. Joel Panida testified:
“Q Now, who issued you a receipt?
“Q On April 12,1992 were you present in that meeting?
“A Mona Gabres.
“A Yes, I was also there, ma’am.
“Q What about her husband Lito Gabres?
“Q Who else were present on that day, April 12,1992?
“A Aunt Oreta gave the P5,000.00 to Mona Gabres who counted the
“A Mrs. Nisperos, Tarcisio Dacsig, Ramil Nisperos and Julius Aoay.
money, after counting the money Lito Gabres gave it to Mona
“Q Who from the side of the accused came to see you?
Gabres.
“A It was Mona Gabres only, ma’am.
“x x x xxx x x x.
“Q How about Lito Gabres, was he also present?
“Q I would like to show to you this receipt dated July 31, 1992
“A He was not there, ma’am.
previously marked as Exhibit ‘B-1' for Crim. Case No. 92-CR-1803
“Q On April 12,1992 what transpired in that meeting?
and Exhibit ‘I-1' in Crim. Case No. 92C R-1805, is this the receipt
“A She introduced herself as a recruiter for workers going to Korea. She also asked us
you are referring to?
that if we are interested then we will give P5,000.00 each as down payment."14
“A Yes, Ma’am. The Court finds it hard to accept the claim that private complainants have
“Q Now, who issued you this receipt? prevaricated the evidence to implicate Mona Gabres only because the authorities
“A Lito Gabres, Ma’am. have yet to succeed in arresting her husband. It is, of course, unfortunate that the
husband, at least momentarily, is able to ward off the long arm of the law;
“Q Now, if this receipt was issued by Lito Gabres what was the nevertheless, it should, in the end, still catch up with him.
participation of Mona Gabres?
“A I handed this P25,000.00 to Lito Gabres, he counted it and then ________________
handed it to Mona Gabres, Ma’am."12 13TSN, 23 May 1994, p. 6.
14TSN, 26 April 1994, p. 12.
________________
593
11TSN, 05 April 1994, pp. 6–11. VOL. 267, FEBRUARY 6, 1997 593
12TSN, 10 May 1994, pp. 5–6. People vs. Gabres
592 Accused-appellant has indeed committed estafa by means of deceit punishable
592 SUPREME COURT REPORTS ANNOTATED under Article 315(2)(a) of the Revised Penal Code.15 The trial court’s brief
ratiocination is well taken; viz:
People vs. Gabres
“There is no dispute that damages have been incurred by the complainants. They
Testimony of Julius Aoay: parted with their money in consideration of deployment for work in a foreign
“Q I would like to show you a receipt dated June 7, 1992 which has been previously country, but which unfortunately remains unrestituted despite the failure in that
regard of the person or persons who promised that they will be sent off to work
marked as Exhibit ‘A' in Criminal Case 1801, as Exhibit ‘B' in Criminal Case 1805, abroad."16
as Exhibit ‘B' in Criminal Case 1800, as Exhibit ‘C' in Criminal Case 1803 and as Accused-appellant is likewise guilty of illegal recruitment in large scale, an offense
Exhibit ‘B' in Criminal Case 1802, is this the receipt issued to you? under Article 38(b), in relation to Article 39, of the Labor Code which provides:

CRIMINAL LAW | PENALTIES P a g e 110 | 279

“ART. 38. Illegal Recruitment.—(a) Any recruitment activities, including the
prohibited practices enumerated under Article 34 of this Code, to be undertaken by
non-licensees or non-holders of authority shall be deemed illegal and punishable
under Article 39 of this Code. The Ministry of Labor and Employment or any law
enforcement officer may initiate complaints under this Article.
"(b) Illegal recruitment when committed by a syndicate or in large scale shall
be considered an offense involving economic sabotage and shall be penalized in
accordance with Article 39 hereof.
“Illegal recruitment is deemed committed by a syndicate if carried out by a
group of three (3) or more persons conspiring and/or confederating with one another
in carrying out any unlawful or
________________
15 “ART. 315. Swindling (estafa).—Any person who shall defraud another by
any of the means mentioned hereinbelow shall be punished by:
xxx xxx xxx
“2. By means of any of the following false pretenses or fraudulent acts executed
prior to or simultaneously with the commission of the fraud:
"(a) By using fictitious name, or falsely pretending to possess power, influence,
qualifications, property, credit, agency, business or imaginary transactions, or by
means of other similar deceits.”
16 Rollo, p. 49.
594
594 SUPREME COURT REPORTS ANNOTATED
People us. Gabres
illegal transaction, enterprise or scheme defined under the first paragraph hereof.
Illegal recruitment is deemed committed in large scale if committed against three
(3) or more persons individually or as a group.”
“x x x xxx x x x.
“ART. 39. Penalties.—(a) The penalty of life imprisonment and a fine of One
Hundred Thousand Pesos (P100,000) shall be imposed if illegal recruitment
constitutes economic sabotage as defined herein.”
Quite appropriately, the trial court has observed:
"(T)here are two elements of the crime (of illegal recruitment), namely: (1) that the
offender is a non-licensee or non-holder of authority to lawfully engage in the
recruitment and placement of workers; and (2) that the offender undertakes any of
the recruitment activities defined under Article 13(b) of the Labor Code, as
amended, or any prohibited practices enumerated under Article 34 of the same
code. (PEOPLE vs. CORAL, G.R. Nos. 97849–54, March 1, 1994, 230 SCRA 499).
Without any doubt, this Court finds the two elements of the crime present in the
case at bar. That the accused are nonlicensees or non-holders of authority to
lawfully recruit is evident in the certification issued by Atty. Justinian Lichnacban
of the POEACAR Regional Extension Office of Baguio City (Exhibit ‘D', 93-
CR1800). Article 13(b) of the Labor Code defines recruitment and placement as ‘any
act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring
CRIMINAL LAW | PENALTIES
workers, and includes referrals, contract services, promising or advertising for
employment, locally or abroad, whether for profit or not: Provided, that any person
or entity which, in any manner, offers or promises for a fee employment to two or
more persons shall be deemed engaged in recruitment and placement.’ The act of
the accused in holding out a placement fee of P45,000.00 per applicant in exchange
for an employment abroad; the several collections made by them; and their promise
to send off the applicants for work in Korea were just some of the circumstances
that would qualify the acts of the accused under the definition of recruitment and
placement."17
________________
17Rollo, p. 52.
595
VOL. 267, FEBRUARY 6, 1997 595
People vs. Gabres
The Court, however, would have to reduce the award of actual damages to Oreta
Nisperos from P55,000.00 to P50,000.00. Oreta concededly could not present any
receipt for the supposed payments she allegedly made on 26 April 1992 and on 05
May 1992, for P5,000.00 each, on behalf of Ramil Nisperos. Joel Panida, in his
testimony, attested to the payment made on 26 April 199218 but no similar evidence
was presented to prove the payment made on 05 May 1992.
Article 315 of the Revised Penal Code provides:
“ART. 315. Swindling (estafa).—Any person who shall defraud another by any of
the means mentioned hereinbelow shall be punished by:
“1st. The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000 pesos but
does not exceed 22,000 pesos; and if such amount exceeds the latter sum, the
penalty provided in this paragraph shall be imposed in its maximum period, adding
one year for each additional 10,000 pesos; but the total penalty which may be
imposed shall not exceed twenty years. In such case, and in connection with the
accessory penalties which may be imposed and for the purpose of the other
provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be;
“2nd. The penalty of prision correccional in its minimum and medium periods,
if the amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos;
3rd. The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period, if such amount is over 200 pesos but does not
exceed 6,000 pesos; and
“4th. By arresto mayor in its medium and maximum periods, if such amount
does not exceed 200 pesos, provided that in the four cases mentioned, the fraud be
committed by any of the following means.”
Under the Indeterminate Sentence Law, the maximum term of the penalty shall be
“that which, in view of the attending circumstances, could be properly imposed”
under the Revised Penal Code, and the minimum shall be “within the
P a g e 111 | 279
________________ In Criminal Case No. 93-CR-1801, the amount involved, as so modified by this
Court, is P50,000.00. The minimum penalty should then be reduced to four (4) years
18TSN, 26 April 1994, pp. 12–13. and two (2) months of prision correccional (the maximum of the minimum of the
596 indeterminate sentence). The maximum penalty should at least be six (6) years and
596 SUPREME COURT REPORTS ANNOTATED one (1) day of prision mayor plus a period of two (2) years (one [1] year for each
additional P10,000.00) for a total maximum period of eight (8) years and one (1)
People vs. Gabres day of prision mayor.
range of the penalty next lower to that prescribed” for the offense. 19 The penalty In Criminal Case No. 93-CR-1802 and No, 93-CR-1803, the amounts involved
next lower should be based on the penalty prescribed by the Code for the offense, in each total P40,000.00. The minimum penalty of the indeterminate sentence
without first considering any modifying circumstance attendant to the commission imposed by the court a quo of two (2) years, eight (8) months and one (1) day
of the crime.20 The determination of the minimum penalty is left by law to the of prision correccional is within lawful range. The maximum penalty, however,
sound discretion of the court and it can be anywhere within the range of the penalty should at least be six (6) years and one (1) day of prision mayor plus a period of one
next lower without any reference to the periods into which it might be (1) year for a total maximum period of seven (7) years and one (1) day of prision
subdivided.21 The modifying circumstances are considered only in the imposition of mayor.
the maximum term of the indeterminate sentence.22 WHEREFORE, the decision appealed from is AFFIRMED with modification
The fact that the amounts involved in the instant case exceed P22,000.00 only insofar as the penalties therein imposed are concerned; thus—
should not be considered in the initial determination of the indeterminate penalty;
instead, the matter should be so taken as analogous to modifying circumstances in 1. (1)In Criminal Case No. 93-CR-1800, accused-appellant is sentenced to an
the imposition of the maximum term of the full indeterminate sentence. This indeterminate sentence of imprisonment of from (4) years and
interpretation of the law accords with the rule that penal laws should be construed two (2) months of prision correccional as MINIMUM, to eight (8) years
in favor of the accused. Since the penalty prescribed by law for the estafa charge and ten (10) months of prision mayor as MAXIMUM.
against accused-appellant is prision correccional maximum to prision 2. (2)In Criminal Case No. 93-CR-1801, accused-appellant is sentenced to an
mayor minimum, the penalty next lower would then be prision indeterminate sentence of imprisonment of from four (4) years and two
correccional minimum to medium. Thus, the minimum term of the indeterminate (2) months of prision correccional as MINIMUM, to eight (8) years and
sentence should be anywhere within six (6) months and one (1) day to four (4) years one (1) day of prision mayor as MAXIMUM, the actual damages being
and two (2) months while the maximum term of the indeterminate sentence should reduced to P50,000.00.
at least be six (6) years and one (1) day because the amounts involved exceeded
P22,000.00, plus an additional one (1) year for each additional P10,000.00.
Accordingly, the Court thus finds some need to modify in part of the penalties 598
imposed by the trial court; viz: 598 SUPREME COURT REPORTS ANNOTATED
People vs. Gabres
________________
1. (3)In Criminal Case No. 93-CR-1802, accused-appellant is sentenced to an
See Section 1 of Act No. 4103, otherwise known as the Indeterminate
19
indeterminate sentence of imprisonment of from two (2) years, eight (8)
Sentence Law, as amended.
20 People vs. Gonzales, 73 Phil. 549. months and one (1) day of prision correccional as MINIMUM, to seven
21 People vs. Ducosin, 59 Phil. 109. (7) years and one (1) day of prision mayor as MAXIMUM.
22 People vs. Joya, 98 Phil. 238. 2. (4)Criminal Case No. 93-CR-1803, accused-appellant is sentenced to an
indeterminate sentence of from two (2) years, eight (8) months and one
597
(1) day of prision correccional as MINIMUM, to seven (7) years and one
VOL. 267, FEBRUARY 6, 1997 597 (1) day of prision mayor as MAXIMUM.
People vs. Gabres
In Criminal Case No. 93-CR-1800, the amount involved is P45,000.00. Hence, the All other aspects of the dispositive portion of the decision appealed from are
minimum penalty should be reduced to four (4) years and two (2) months of prision AFFIRMED.
correccional, which is the maximum of the allowable minimum penalty of the Costs against accused-appellant.
indeterminate sentence. The maximum penalty imposed by the court a quo is SO ORDERED.
within lawful range.

CRIMINAL LAW | PENALTIES P a g e 112 | 279

 Padilla (Chairman), Bellosillo, Kapunan and Hermosisima, Jr.,
JJ., concur.
Judgment affirmed with modification.
Note.—Illegal recruitment carries with it the penalty of life imprisonment and
a fine which varies by degrees in accordance with the enumeration made in Article
39 of the Labor Code as amended. (People vs. Cabacang, 246 SCRA 530 [1995])
——o0o——
599
112 SUPREME COURT REPORTS ANNOTATED
People vs. Lampaza
G.R. No. 138876. November 24, 1999.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EGMEDIO
LAMPAZA, accused-appellant.
Criminal Law; Witnesses; Affidavits; Well-settled is the rule that
inconsistencies between an affidavit and a testimony do not necessarily discredit the
witness, for affidavits are generally incomplete and are not considered final
repositories of truth.—The
______________
*THIRD DIVISION.
113
VOL. 319, NOVEMBER 24, 1999 113
People vs. Lampaza
“conflicts” cited by appellant are largely semantical, not factual, in character.
Whether appellant forcibly made her lie down on the floor or whether he dumped
her makes no substantial difference in appreciating the fact of the crime: that she
was down on the floor against her will. Likewise, appellant makes too much ado
about the discrepancy between her being “pressed forward” and her being “lifted”;
the allegedly conflicting statements equally mean that he forced her to go to the
nipa hut. Moreover, the well-settled rule is that inconsistencies between an
affidavit and a testimony do not necessarily discredit the witness, for affidavits are
generally incomplete and are not considered final repositories of truth.
Same; Rape; The law does not impose upon a rape victim the burden of
proving resistance.—Appellant further argues that “if there was any resistance [by
the victim], it was couched in general terms.” The argument is bereft of merit. We
must stress that the law does not impose upon a rape victim the burden of proving
resistance. Indeed, physical resistance need not be established when the culprit
employed intimidation, which, insofar as it was directed at the mind of the victim,
must be viewed in the light of the latter’s perception and judgment at the time. In
the present case, the victim was terrified because the threat of the appellant to kill
her was substantiated by the bolo he placed beside her. Furthermore, she could not
have successfully resisted because, according to her, he was husky and strong.
CRIMINAL LAW | PENALTIES
Same; Same; The fact that the victim has no visible signs of injury does not by
itself disprove rape.—Neither are we persuaded by his contention that complainant
did not undergo medical examination to show signs of physical struggle or assault.
The fact that the victim had no visible signs of injury did not by itself disprove rape.
We reiterate that she was too intimidated to offer serious resistance to the advances
of appellant. More important, no law requires a medical examination for the
successful prosecution of rape. Even without a medical report, the rape victim’s
credible testimony, standing alone, is a sufficient basis for conviction. In the
present case, we find no reason to disbelieve her testimony. Time and time again,
the Court has held that no woman in her right mind would declare to the whole
world that she was raped and subject herself to the concomitant strain and stigma,
unless she is telling the truth. For his part, appellant failed to adduce any evidence
to show that the victim’s testimony was false.
114
114 SUPREME COURT REPORTS ANNOTATED
People vs. Lampaza
Same; Same; “Sweetheart Theory”; The “sweetheart” defense cannot be given
credence in the absence of corroborative proof like love notes, mementoes, pictures or
tokens—love is not a license to rape.—Other than his bare assertions, appellant
adduced no independent proof that he was the sweetheart of the victim. His defense
was neither corroborated by any other witness nor substantiated by any memento,
love note, picture or token. Furthermore, even assuming that the two were lovers,
their relationship did not give him a license to sexually assault her.
Same; Same; Witnesses; Indicative of an unrehearsed testimony, slight
contradictions even serve to strengthen a witness’ credibility.—Appellant contends
that the prosecution witnesses should not be accorded credence because their
testimonies were replete with inconsistencies and “incredibilities.” In addition to
the instances alluded to earlier, appellant cites the following: the victim testified
that she shouted, although she said in her Sworn Statement that she had not done
so; she allegedly told her husband of the rape on the evening of the fateful day, but
her husband testified that he did not return home until the afternoon of the
following day. We are not persuaded. The aforecited inconsistencies are minor in
character and, as such, do not impugn the credibility of the complainant. Indicative
of an unrehearsed testimony, the slight contradictions even serve to strengthen her
credibility. Indeed, the Court cannot expect a rape victim to remember every ugly
detail of the sexual assault.
Same; Same; Same; There is no code of conduct prescribing the correct
reaction of a rape victim to the sexual assault.—Complainant’s testimony was not
weakened by her failure to immediately narrate the incident to her nephew or to
her husband. There is no code of conduct prescribing the correct reaction of a rape
victim to the sexual assault. When placed under a great deal of emotional stress,
the workings of the human mind are unpredictable. Some may immediately relay
the incident to authorities and close relatives, but others need time to compose
themselves before deciding on a course of action. Although she did not immediately
inform her nephew about the incident, she told her husband about it after he
arrived from another town, when they were about to sleep. That same night, she
P a g e 113 | 279
and her husband decided to report the outrage to the authorities. In this light, her
account is far from incredible. Even assuming that there was a delay in reporting
the incident to the police, this fact is not necessarily an indication of fabrication.
115
VOL. 319, NOVEMBER 24, 1999 115
People vs. Lampaza
Same; Same; Penalties; The Indeterminate Sentence Law does not apply when
the offense involved is punishable with reclusion perpetua.—Under the law in effect
when the crime was committed, the penalty for simple rape was reclusion
perpetua. In imposing a lower indeterminate penalty, the trial court erred, because
the Indeterminate Sentence Law does not apply when the offense involved is
punishable with reclusion perpetua.
APPEAL from a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Cezar R. Tajanlangit for accused-appellant.
PANGANIBAN, J.:
The medical examination of a victim is not a requisite for the successful prosecution
of rape. Even without a medical report, a court may convict an accused based on
the offended party’s credible testimony. The “sweetheart” defense cannot be given
credence in the absence of corroborative proof like love notes, mementos, pictures
or tokens. Love is not a license to rape.
The Case
Egmedio Lampaza appeals the March 14, 1994 Decision 1 of the Regional Trial
Court (RTC) of San Jose, Antique (Branch 10)2 in Criminal Case No. 3692, finding
him guilty of rape.
____________________
Although the Decision is dated March 14, 1994, it was promulgated only on
1
May 31, 1994. (See Order of the trial court, dated May 31, 1994, Records, pp. 171-
172.)
2 Assisting Judge Marvie R. Abraham Singson wrote the assailed Decision, but
it was Judge Pedro Icamina who heard the testimonies of the prosecution
witnesses.
116
116 SUPREME COURT REPORTS ANNOTATED
People vs. Lampaza
In an Information dated May 25, 1988 and “at the instance of the offended party,”
Assistant Provincial Fiscal Juan C. Mission, Jr. charged appellant as follows:3
CRIMINAL LAW | PENALTIES
“That on or about the 20th day of March, 1988, in the Municipality of Tobias
Fornier, Province of Antique, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the above-named accused with lewd design,
through intimidation, violence and force and with the use of a deadly weapon, did
then and there willfully, unlawfully and feloniously have carnal knowledge with
Teodora Wacay without and against the consent of the offended party.”
With the assistance of Atty. Esdras F. Tayco, appellant entered a plea of not guilty
when arraigned on June 9, 1988.4 Trial proceeded in due course. Thereafter, the
trial court promulgated its assailed Decision, the decretal portion of which reads:5
“WHEREFORE, in the light of the above facts, law and jurisprudence, after the
prosecution has presented thorough and convincing evidence, the Court finds
accused EGMEDIO LAMPAZA GUILTY beyond reasonable doubt of the crime of
RAPE and applying the Indeterminate Sentence Law hereby sentences him to
suffer the penalty of imprisonment for the period of Twelve (12) Years and one (1)
Day to Fourteen (14) Years and Eight (8) Months as minimum to Seventeen (17)
Years and Four (4) Months and One (1) Day to Twenty (20) Years as maximum and
to indemnify Teodora Wacay [in] the amount of P30,000.00 as damages, without
subsidiary imprisonment in case of insolvency and to pay the costs.”
On June 1, 1994, appellant, through Counsel Cezar C. Tajanlangit, filed a Notice
of Appeal to the Court of Appeals (CA).6 After the defense and the prosecution filed
their respec-
__________________
3 Records, p. 1.
4 Records, p. 25.
5 RTC Decision, pp. 10-11; rollo, pp. 16-17.
6 Records, p. 173.
117
VOL. 319, NOVEMBER 24, 1999 117
People vs. Lampaza
tive Briefs, the appellate court7 rendered a Decision affirming the conviction of
appellant, but modifying the penalty to reclusion perpetua. The dispositive portion
of the CA Decision reads:8
“WHEREFORE, the appealed decision is AFFIRMED with the MODIFICATION
that appellant EGMEDIO LAMPAZA is hereby sentenced to suffer the penalty
of reclusion perpetua and to pay complainant Teodora Wacay the amount
of P50,000.00 for moral damages.”
In the light of Section 13, Rule 124 of the Rules of Court, 9 the CA “recalled” the
entry of the above judgment, certified the case to this Court and elevated the
records.10
The Facts
Version of the Prosecution
In its Brief,11 the Office of the Solicitor General adopted the following facts as
summarized by the trial court:12
P a g e 114 | 279
____________________
7 Tenth Division, composed of J. Ruben T. Reyes, ponente; J. Quirino D. Abad
Santos, Jr. (chairman) and J. Hilarion L. Aquino (member), both concurring.
8 CA Decision, p. 17; rollo, p. 133.
9 It provides that “[w]henever the Court of Appeals should be of the opinion that
the penalty of reclusion perpetua or higher should be imposed in a case, the Court,
after discussion of the evidence and the law involved, shall render judgment
imposing the penalty of reclusion perpetua or higher as the circumstances warrant,
refrain from entering judgment and forthwith certify the case and elevate the
records thereof to the Supreme Court.”
10 Records, p. 140. In a Resolution dated July 19, 1999, this Court informed
appellant that he “may file a SUPPLEMENTAL BRIEF, if he so desires, within 30
days from notice.” Because appellant did not do so, the case was deemed submitted
for resolution on the basis of the pleadings filed by the parties before the Court of
Appeals.
11 Signed by Assistant Solicitor General Amparo M. Cabotaje-Tang and
Associate Solicitor Ma. Zorayda V. Tejones.
12 Brief for Plaintiff-Appellee, pp. 3-6; rollo, pp. 86-89.
118
118 SUPREME COURT REPORTS ANNOTATED
People vs. Lampaza
“The first witness presented was a college student who is the nephew of the private
offended party, who went to the house of the latter on March 20, 1988, without
finding her there. Witness looked for Teodora, proceeding to the place where farm
animals are grazed, which was two hills away. (pp. 2-4, TSN, September 27, 1989)
“Witness saw [his] aunt running out [of] one of the nipa huts in the farm. When
[his] aunt reached him, she was sobbing and very pale. She immediately asked him
to accompany her back to her house. His aunt explained to him that she ha[d] to
leave that place immediately because she was afraid of somebody and therefore
could not stay in Sitio Namontonan, Brgy. Camandagan, Tobias Fornier, Antique.
(pp. 5-7, TSN, Ibid.)
“During cross examination, defense counsel verified the details regarding the
testimony under direct-examination of this witness, as to the reason witness was
in that sitio (p. 8, TSN, id.), the distance between the house and the grazing area
of the farm animals, the location of the nipa hut and other details. (p. 9, TSN, id.)
“Witness repeated to the Court that [his] aunt was very afraid when he met her
running out of the nipa hut although she did not tell him yet what happened. That
[his] aunt was trembling, very pale and looking very weak. (p. 10, TSN, id.)
“The private offended party herself testified, and positively identified accused
in open court. (p. 18, TSN, id.) That in the morning of March 20, 1988 she was in
her farm lot in Sitio Namontonan, Barangay Camandagan, Tobias Fornier,
Antique. When she was about to graze their animals, all of a sudden accused came
from behind her and twisted both her arms. Then accused lifted her and brought
her to a nipa hut which was uninhabited. Victim struggled to set herself free, to no
CRIMINAL LAW | PENALTIES
avail despite kicking, shouting and struggling to be free from the hold of the
accused. (pp. 18-23, TSN, id.)
“Accused dropped [the] victim to the floor of the nipa hut; pinned both her legs
including her right hand with [his] knees [and took] off his pants. The accused ha[d]
his bolo beside him with which he threatened the victim. Victim testified that
accused raped her then, explaining in detail the commission of the said act. (pp. 23-
29, TSN, id.)
“Witness informed her husband and her mother about the rape that evening.
(pp. 31-32, TSN, id.)
“During cross-examination, defense counsel tried to impeach the testimony of
the witness by eliciting the information that accused and victim were close
neighbors; that during the incident
119
VOL. 319, NOVEMBER 24, 1999 119
People vs. Lampaza
private offended party passed by accused who was cutting bamboo poles, on her
way to the grazing area of the farm lot. (pp. 3-4, TSN, November 7, 1989) She
described again the force and intimidation emanating from the accused in
committing the act complained of. Private offended party informed the Court of the
great fear she felt that she was trembling and almost speechless when the incident
happened. (pp. 5-7; 11-22, TSN, Ibid.)
“Witness was never attracted to the accused as she testified on cross[-
]examination. (p. 19, TSN, id.)
“When queried by the Court as to the length of the sexual intercourse she stated
that it lasted only three minutes, although the acts of force, intimidation and the
struggle lasted for more than ten minutes. (pp. 22-23, TSN, id.)
“During the hearing of January 4, 1990, prosecution presented another witness
in the person of the husband of the offended party (p. 32), who testified that the
latter informed him about her being raped by the accused; that [he] wanted to kill
the accused but he was prevailed upon by his wife and decided to file a case in
Court, hence the criminal complaint (p. 34). Witness was in another town during
the incident: that he returned to his house in the afternoon of the following day,
when his wife informed him of the incident. (pp. 32-34)
“They went to the police authorities the following day and filed their formal
complaint, contained in a sworn statement. (pp. 34-38, TSN, id.)”
Version of the Defense
Insisting that appellant and complainant were sweethearts, the defense presents
the following version of the facts:13
“The defense’s version of the case is as follows: Accused Egmedio Lampaza and
complainant Teodora Wacay are neighbors. They have known each other since
childhood. Accused courted complainant who later became his girlfriend. However,
they married different persons, but that notwithstanding, they have had intimate
relations.
__________________
P a g e 115 | 279
 13 Appellant’s Brief, pp. 5-6; rollo, pp. 51-52. The Brief was signed by Atty.
Cezar R. Tajanlangit.
120
120 SUPREME COURT REPORTS ANNOTATED
People vs. Lampaza
“In the morning of 20 March 1988, accused heard a signal from complainant. The
latter informed him that her husband was in another town, and when he asked her
“what now because your husband is not there,” complainant just laughed.
Complainant told accused that she was going to fetch her carabao, so he followed
her. When he reached the place where she was, he put his arms around her, but
she brushed them aside, apprehensive that they might be seen. Complainant went
up the nipa hut, the same place where they had had sexual intercourse, and made
love again, with complainant taking off her clothes first, followed by accused taking
off his pants and shirt. They made love consensually. He did not threaten
complainant; neither did he use force [or] violence in consummating the sexual act
because the same was with the consent of complainant (t.s.n., August 6, 1991).
“Filomena Lampaza, the lawfully-wedded wife of the accused, testified that
complainant is the mistress of her husband, the accused. Because of her husband’s
extra-marital relationship, they were always quarreling. To avoid further trouble
she went to Iloilo to work as a housemaid for Judge Amelia K. Del Rosario (pp. 49-
50, t.s.n., Sept. 24, 1991). The latter testified that Filomena had worked for her
family as a housemaid, and during the course of her employment she had confided
to her employer that her (Filomena’s) husband was maltreating her and ha[d] a
‘querida’ (t.s.n., Jan. 30, 1992).”
Ruling of the RTC and the CA
Debunking the claim that the sexual intercourse was consensual, the trial court
held that appellant used force against the victim by twisting her arm and bodily
lifting her from the farm lot to the nipa hut. He also threatened and intimidated
her by placing a bolo beside her during the actual rape. The trial court ruled:14
“Our assessment and appraisal of the facts of the case show that there was force
committed on the victim when her arms were twisted and she was bodily lifted from
the farm lot to the nipa hut. She was intimidated or there was a threat to intimidate
her, when the bolo was placed beside her during the rape.
___________________
14RTC Decision, pp. 9-10; rollo, pp. 15-16.
121
VOL. 319, NOVEMBER 24, 1999 121
People vs. Lampaza
“This court finds that the incident complained of which occurred on March 20, 1988
was x x x done without the consent [or] approval of the victim.
“We do not see any reason why Teodora Wacay related the incident to her
husband the following evening, if indeed the rape was not committed because the
husband was out of town then. Much more, that she went to court. In People vs.
CRIMINAL LAW | PENALTIES
Estolano, 193 SCRA 383, the Supreme Court held that complainant would not have
made the offense subject and endured the ordeal of testifying to all its gory detail
if she had not in fact been raped.”
Affirming appellant’s conviction, the Court of Appeals modified the penalty
to reclusion perpetua and increased the moral damages to P50,000.
Assignment of Errors
Appellant contends that the trial court committed the following errors:15
“I
x x x [I]n holding that accused-appellant used force and intimidation on
complainant in order to consummate the sexual act
“II
x x x [I]n holding that the sexual intercourse herein complained of “was done
without the consent [or] approval of the victim”
“III
x x x [I]n finding accused-appellant guilty beyond reasonable doubt of rape
based on the inconsistencies, contradictions, and incredibilities palpably apparent
in complainant’s testimony and in [the testimonies] of her witnesses”
In resolving this appeal, we shall address seriatim the three grounds raised by
appellant.
___________________
15Appellant’s Brief, p. 1; rollo, p. 47.
122
122 SUPREME COURT REPORTS ANNOTATED
People vs. Lampaza
The Court’s Ruling
The appeal has no merit.
First Issue:
Force and Intimidation
Appellant contends that rape was not proven because force and intimidation were
not established beyond reasonable doubt. Specifically, he argues that the testimony
of the victim on this point should be rejected, because it conflicted with her Sworn
Statement given during the preliminary investigation. First, in her statement she
averred that “he pressed [her] forward towards” the nipa hut; but she testified that
he “lifted” her. Second, she declared in her statement that he “forcibly made [her]
lie down,” but she testified that he “dump[ed] [her] on the floor.” Third, she also
P a g e 116 | 279
stated that appellant’s bolo was tucked to his side, but she testified that it was Q. Will you please demonstrate to this Honorable Court how you were lifted by
placed beside her.16
We are not convinced. The “conflicts” cited by appellant are largely semantical, Egmedio Lampaza?
not factual, in character. Whether appellant forcibly made her lie down on the floor A. (With Julie Magbanua acting in place of the victim and the witness in place of the
or whether he dumped her makes no substantial difference in appreciating the fact accused, the accused stands behind the victim and place[s] both arms around the
of the crime: that she was down on the floor against her will. Likewise, appellant
makes too much ado about the discrepancy between her being “pressed forward” victim while the arms of the victim are twisted with the right arms towards the left
and her being “lifted”; the allegedly conflicting statements equally mean that he and the left arms towards the right side of her body and from that position the
forced her to go to the nipa hut. Moreover, the well-settled rule is that accused lifts the victim upward, raising the victim about three inches from the
inconsistencies between an affidavit and a testimony do not necessarily discredit
the witness, for affidavits are generally incomplete17 and are not considered final ground.)
repositories of truth.18
_________________
__________________
19See footnote no. 2.
Appellant’s Brief, pp. 9-10; rollo, pp. 55-56.
16
20TSN, September 27, 1989, pp. 19-26.
People v. Padao, 267 SCRA 64, January 28, 1997; Sumalpong v. CA, 268
17 124
SCRA 764, February 26, 1997. 124 SUPREME COURT REPORTS ANNOTATED
18 People v. Espanola, 271 SCRA 689, April 18, 1997; People v. Pontilar, 275
People vs. Lampaza
SCRA 338, July 11, 1997.
123 Q. Now, Madam Witness, while you were being lifted by the accused in the position
VOL. 319, NOVEMBER 24, 1999 123 you have just mentioned, what else did he do?
People vs. Lampaza A. Egmedio Lampaza told me, ‘Come, let’s have sexual intercourse.’
In any event, we agree with the trial court that appellant used force and Q. While saying that and while lifting you, what else did Egmedio Lampaza do, if any?
intimidation in ravaging complainant. Although its factual findings are not A. He brought me to the nipa hut, Sir.
absolutely binding on this Court because it was not the ponente who heard the
prosecution witnesses,19 we believe and so hold that the totality of the evidence Q. How far is that nipa hut from where you were at that time?
presented indubitably demonstrates that appellant had sexual intercourse with A. About five arms stretch away, Sir.
complainant against her will. He twisted the arms of the terrified victim, forced her Q. Was that hut inhabited?
to go inside the uninhabited nipa hut, placed the bolo beside her, and threatened
to kill her in order to sate his lust. The victim testified as follows:20 A. No one lives there.

“Q. Now, while you were untying the rope of your carabao, do you recall of any unusual xxx xxx xxx

incident that happened? Q. While you were being lifted by the accused and being carried to the nipa hut, what

A. Yes, Sir. did you do if you did anything?

Q. What was that incident? A. I struggled to set myself free.

A. All of a sudden, a person came from behind me and twisted both my hands. (Witness Q. Will you please demonstrate to this Honorable Court how you struggled?

demonstrated with her right hand twisted towards the left side of her body while the A. (At this juncture, Julie Magbanua takes the place of the accused while the witness

left hand was also twisted towards the right side of her body, both hands in front). takes the place of the victim and from the position previously described, with the x x

xxx xxx xxx x arms [of the accused] around the victim, the victim struggle[s] to set herself free

Q. Now, after the accused Egmedio Lampaza twisted your arms, what else happened? by moving her body towards the left and right and trie[s] to push her head

A. He lifted me. downward away from the arms of the accused [who is] embracing her. The witness
further states that since her feet were off the ground, it [was] hard to set herself free).

CRIMINAL LAW | PENALTIES P a g e 117 | 279

Q. Now, aside from struggling hard to free yourself from the clutches of the accused, Q. Did you notice if there was any weapon carried by the
what else did you do if any? accused with him?
A. I kicked both my legs. (Witness demonstrates a movement as if she were pedalling A. Yes, Sir.
an unseen bicycle). Q. What was he carrying?
Q. Did you make any statement while you were trying to struggle from the hold of the A. He was carrying a bolo, Sir.
accused? Q. Where was the bolo of the accused at that time?
A. I did not say anything. I only struggled. A. It was beside me, Sir.”
Q. Why did you not say anything? Appellant further argues that “if there was any resistance [by the victim], it was
couched in general terms.”21 The argument is bereft of merit. We must stress that
xxx xxx xxx the law does not impose upon a rape victim the burden of proving
A. Because I was afraid, Sir. resistance.22 Indeed, physical resistance need not be established when the
125
VOL. 319, NOVEMBER 125 ____________________
24, 1999 21Appellant’s Brief, p. 10; rollo, p. 56.
People vs. Lampaza 22People v. Penero, 276 SCRA 564, July 31, 1997.
PROSECUTOR CASALAN: 126
Q. Was the accused able to reach the nipa hut with you? 126 SUPREME COURT REPORTS ANNOTATED
A. Yes, Sir. People vs. Lampaza
Q. While you were already at the nipa hut, what did the accused culprit employed intimidation,23 which, insofar as it was directed at the mind of the
victim, must be viewed in the light of the latter’s perception and judgment at the
do, if any? time.24 In the present case, the victim was terrified because the threat of the
A. He dumped me on the floor of the nipa hut. appellant to kill her was substantiated by the bolo he placed beside her.
xxx xxx xxx Furthermore, she could not have successfully resisted because, according to her, he
was husky and strong.
Q. After the accused dumped you on the floor of the nipa hut, Neither are we persuaded by his contention that complainant did not undergo
what happened to you? medical examination to show signs of physical struggle or assault. 25 The fact that
A. The accused pinned both my legs as well as my right hand, the victim had no visible signs of injury did not by itself disprove rape.26 We
reiterate that she was too intimidated to offer serious resistance to the advances of
Sir, with both of his knees. appellant.
xxx xxx xxx More important, no law requires a medical examination for the successful
PROSECUTOR CASALAN: prosecution of rape.27 Even without a medical report, the rape victim’s credible
testimony, standing alone, is a sufficient basis for conviction.28 In the present case,
Q. Now, Madam Witness, while in this position, what next did we find no reason to disbelieve her testimony. Time and time again, the Court has
the accused do? held that no woman in her right mind would declare to the whole world that she
A. The accused took off his pants. was raped and subject herself to the concomitant strain and stigma, unless she is

Q. While the accused was doing that, was the accused saying ___________________
anything?
A. Yes, Sir. People v. Rabosa, 273 SCRA 142, June 9, 1997; People v. Gaban, 262 SCRA
23

593, September 30, 1996.

Q. What did he say? 24 People v. Oarga, 259 SCRA 90, July 17, 1996; People v. Gumagob, 265 SCRA
A. ‘If you do not allow me to have sexual intercourse with you, 84, November 28, 1996; People v. Corea, 269 SCRA 76, March 3, 1997.
25 Appellant’s Brief, p. 17; rollo, p. 62.
I am going to kill you.’
CRIMINAL LAW | PENALTIES P a g e 118 | 279
 26 People v. Querida, 229 SCRA 745, February 7, 1994; People v. Sabellina, 238
SCRA 492, December 1, 1994; People v. Arnan, 224 SCRA 37; June 30, 1993.
27 People v. Julian, 270 SCRA 733, April 4, 1997; People v. Manaay, 151 SCRA
31, June 18, 1987.
28 People v. Salazar, 258 SCRA 55, July 5, 1996. See also People v. De la
Cruz, 224 SCRA 506, July 6, 1993; People v. Godines, 196 SCRA 765, May 7, 1991.
127
VOL. 319, NOVEMBER 24, 1999 127
People vs. Lampaza
telling the truth.29 For his part, appellant failed to adduce any evidence to show
that the victim’s testimony was false.
Second Issue:
Sweetheart Theory
Appellant admits that he had sexual intercourse with the complainant that fateful
day, but argues that they were lovers and the act was consensual. 30 He adds that
their respective marriages to different persons had not prevented them from
engaging in sexual dalliances with each other.
We are not persuaded. Other than his bare assertions, appellant adduced no
independent proof that he was the sweetheart of the victim. His defense was
neither corroborated by any other witness nor substantiated by any memento, love
note, picture or token.31 Furthermore, even assuming that the two were lovers,
their relationship did not give him a license to sexually assault her. 32
Appellant’s defense is further negated by the behavior of the victim who,
according to Rogelio Sumbilon, was running out of the crime scene “sobbing and
very pale”33 immediately after the commission of the crime. Elaborating during
cross-examination, he said that the victim “was in a hurry, as if she was afraid of
something and as if somebody was running after her.”34 When they reached her
house, she told him that she was afraid and that they should hurry to her mother’s
house
____________________
People v. Cabaluna, 264 SCRA 596, November 21, 1996; People v. De
29
Guzman, 265 SCRA 228, December 2, 1996.
30 Appellant’s Brief, pp. 11-12; rollo, pp. 57-58.
31 See People v. Acabo, 259 SCRA 75, July 17, 1996.
32 People v. Buendia, G.R. Nos. 133949-51, 314 SCRA 655, September 16,
1999; People v. Travero, 276 SCRA 301, July 28, 1997; People v. Laray, 253 SCRA
654, 662-663, February 20, 1996; People v. Gecomo, 254 SCRA 82, 110, February
23, 1996.
33 TSN, September 27, 1989, p. 5.
34 Ibid., p. 10.
128
128 SUPREME COURT REPORTS ANNOTATED
People vs. Lampaza
CRIMINAL LAW | PENALTIES
about three or four kilometers away. Her conduct clearly belied appellant’s claim
that the sexual act was consensual.
Third Issue:
Alleged Inconsistencies and “Incredibilities”
Appellant contends that the prosecution witnesses should not be accorded credence
because their testimonies were replete with inconsistencies and “incredibilities.” In
addition to the instances alluded to earlier, appellant cites the following: the victim
testified that she shouted, although she said in her Sworn Statement that she had
not done so; she allegedly told her husband of the rape on the evening of the fateful
day, but her husband testified that he did not return home until the afternoon of
the following day.35
We are not persuaded. The aforecited inconsistencies are minor in character
and, as such, do not impugn the credibility of the complainant. Indicative of an
unrehearsed testimony, the slight contradictions even serve to strengthen her
credibility.36 Indeed, the Court cannot expect a rape victim to remember every ugly
detail of the sexual assault.37
Equally unconvincing is the alleged physical impossibility of the victim’s
narration that he was allegedly pinning her down with both his hands while taking
off his shirt at the same time.38 The alleged impossibility does not imply the falsity
of her testimony; it only means that it was impossible for her to remember the
minutiae of appellant’s act.
Appellant also challenges the plausibility of the following assertions of the
victim: (a) she made no mention of the rape
____________________
35 Appellant’s Brief, p. 14; rollo, p. 60.
36 People v. Letigio, 268 SCRA 227, February 13, 1997; People v. Magallano, 266
SCRA 305, January 16, 1997; People v. Devilleres, 269 SCRA 716, March 14,
1997; People v. Butron, 272 SCRA 352, May 7, 1997; People v. Patawaran, 274
SCRA 130, June 19, 1997.
37 People v. Alas, 274 SCRA 310, June 19, 1997; People v. Sagucio, 277 SCRA
183, August 11, 1997.
38 Appellant’s Brief, pp. 15-16; rollo, pp. 60a-61.
129
VOL. 319, NOVEMBER 24, 1999 129
People vs. Lampaza
to her nephew when she saw him right after the incident; 39 (b) she did not
immediately tell her husband that she had been raped; 40 (c) she did not report the
outrage to the police or to the barangay officials.41
These arguments are puerile. Complainant’s testimony was not weakened by
her failure to immediately narrate the incident to her nephew or to her husband.
There is no code of conduct prescribing the correct reaction of a rape victim to the
sexual assault. When placed under a great deal of emotional stress, the workings
of the human mind are unpredictable.42 Some may immediately relay the incident
to authorities and close relatives, but others need time to compose themselves
P a g e 119 | 279
before deciding on a course of action.43 Although she did not immediately inform
her nephew about the incident, she told her husband about it after he arrived from
another town, when they were about to sleep. That same night, she and her
husband decided to report the outrage to the authorities. In this light, her account
is far from incredible. Even assuming that there was a delay in reporting the
incident to the police, this fact is not necessarily an indication of fabrication. 44
Crime and Punishment
Article 335 of the Revised Penal Code provides that rape is committed when carnal
knowledge of a woman is obtained under any of the following circumstances: (1)
force or intimidation is used, (2) the woman is deprived of reason or otherwise
unconscious, or (3) the woman is under twelve years of
_____________________
Ibid., p. 14; rollo, p. 60.
39
40 Ibid.
41 Ibid., p. 17; rollo, p. 62.
42 People v. Apongan, 270 SCRA 713, April 4, 1997; People v. San Juan, 270
SCRA 693, April 4, 1997; People v. Cabel, 282 SCRA 410, December 14, 1995.
43 People v. Malunes, 247 SCRA 317, August 14, 1995; People v. Roncal, 272
SCRA 242, May 6, 1997.
44 People v. Julian, 270 SCRA 733, April 4, 1997; People v. Quitoriano, 266
SCRA 373, 378, January 20, 1997.
130
130 SUPREME COURT REPORTS ANNOTATED
People vs. Lampaza
age or is demented. Herein appellant does not deny that he had carnal knowledge
of the victim. Moreover, the totality of the evidence presented shows that he
employed force and intimidation against her. Clearly, his conviction of rape should
be affirmed.
Under the law in effect when the crime was committed, the penalty for simple
rape was reclusion perpetua. In imposing a lower indeterminate penalty, the trial
court erred, because the Indeterminate Sentence Law does not apply when the
offense involved is punishable with reclusion perpetua.
Likewise, appellant should be ordered to pay the victim P50,000 as
indemnity ex delicto, in line with existing jurisprudence.45 We agree with the Court
of Appeals that he should also be ordered to pay P50,000 as moral damages. The
Court has held that “the fact that complainant has suffered the trauma of mental,
physical and psychological sufferings which constitute the bases for moral damages
is too obvious to still require the victim’s recital thereof at the trial x x x.”46
WHEREFORE, the assailed Decision of the Court of Appeals is AFFIRMED,
with the MODIFICATION that the appellant shall pay the victim P50,000 as
indemnity ex delicto in addition to the P50,000 awarded as moral damages. Costs
against appellant.
SO ORDERED.
Melo (Chairman), Vitug, Purisima and Gonzaga-Reyes, JJ., concur.
CRIMINAL LAW | PENALTIES
Assailed decision affirmed with modification.
___________________
People v. Sumalpong, 284 SCRA 464, January 20, 1998; People v.
45
Betonio, 279 SCRA 532, September 26, 1997; People v. Adora, 275 SCRA 441, July
14, 1997.
46 People v. Ignacio, 294 SCRA 542, August 24, 1998, per Romero, J. See
also People v. Vergel, G.R. No. 128813, 316 SCRA 199, October 4, 1999.
131
VOL. 319, NOVEMBER 25, 1999 131
Hold Departure Order Issued by Judge Felipe M. Abalos, MTCC-Br. 1, Dipolog City in
Crim. Cases Nos. 15521 & 15522
Notes.—Love is not a license for carnal intercourse through force or
intimidation. (People vs. Gecomo, 254 SCRA 82 [1996])
The absence of love notes, mementoes or pictures casts doubt on the accused’s
claim that he and the victim were sweethearts. (People vs. Laray, 253 SCRA
654 [1996])
——o0o——
196 SUPREME COURT REPORTS ANNOTATED
People vs. Oyanib
G.R. Nos. 130634-35. March 12, 2001.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANOLITO
OYANIB y MENDOZA, accused-appellant.
Criminal Law; Husband and Wife; Adultery; Death Under Exceptional
Circumstances; Exempting Circumstances; Words and Phrases; An absolutory
cause is present “where the act committed is a crime but for reasons of public policy
and sentiment there is no penalty imposed.”—At the outset, accused admitted
killing his wife and her paramour. He invoked Article 247 of the Revised Penal
Code as an absolutory and an exempting cause. “An absolutory cause is present
Svhere the act committed is a crime but for reasons of public policy and sentiment
there is no penalty imposed.’ ”
Same; Same; Same; Same; Elements; The death caused must be the
proximate result of the outrage overwhelming the nccused after chancing upon his
spouse in the act of infidelity—the killing by the husband of his wife must concur
with her flagrant adultery.—Having admitted the killing, it is incumbent upon
accused to prove the exempting circumstances to the satisfaction of the court in
order to be relieved of any criminal liability Article 247 of the Revised Penal Code
prescribes the following essential elements for such a defense: (1) that a legally
married person surprises his spouse in the act of committing sexual intercourse
with another person; (2) that he kills any of them or both of them in the act or
immediately thereafter; and (3) that he has not promoted or facilitated the
prostitution of his wife (or daughter) or that he or she has not consented to the
P a g e 120 | 279
infidelity of the other spouse. Accused must prove these elements by clear and
convincing evidence, otherwise his defense would be untenable. “The death caused
must be the proximate result of the outrage overwhelming the accused after
chancing upon his spouse in the act of infidelity. Simply put, the killing by the
husband of his wife must concur with her flagrant adultery.”
Same; Same; Same; Same; The law imposes very stringent requirements
before affording the offended spouse the opportunity to avail himself of Article 247,
Revised Penal Code—it must be resorted to only with great caution so much so that
the law requires that it be inflicted only during the sexual intercourse or
immediately thereafter.—The law imposes very stringent requirements before
affording the offended spouse the opportunity to
_______________
*FIRST DIVISION.
197
VOL. 354, MARCH 9, 2001 197
People vs. Oyanib
avail himself of Article 247, Revised Penal Code. As the Court put it in People
v. Wagas: “The vindication of a Man’s honor is justified because of the scandal an
unfaithful wife creates; the law is strict on this, authorizing as it does, a man to
chastise her, even with death. But killing the errant spouse as a purification is so
severe as that it can only be justified when the unfaithful spouse is caught
in flagrante delicto, and it must be resorted to only with great caution so much so
that the law requires that it be inflicted only during the sexual intercourse or
immediately thereafter.”
APPEAL from a decision of the Regional Trial Court of Iligan City, Lanao del
Norte, Br. 2.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Generalao Law Office for accused-appellant.
PARDO, J.:
Accused Manolito Oyanib y Mendoza appeals from the joint decision1 of the
Regional Trial Court, Branch 02, Iligan City finding him guilty beyond reasonable
doubt of homicide and parricide and sentencing him to an indeterminate penalty2 of
six (6) months one day (1) to six (6) years of prision correccional as minimum to six
(6) years one (1) day to eight (8) years of prision mayor as maximum, and to pay
P50,000.00 civil indemnity and the costs for the death of Jesus Esquierdo, and
to reclusion perpetua, to pay P50,000.00 and the costs for the death of his wife, Tita
T. Oyanib.4
On September 11, 1995, Iligan City Prosecutor Ulysses V. Lagcao filed with the
Regional Trial Court, Iligan City two (2) separate
CRIMINAL LAW | PENALTIES
_______________
1 In Criminal Cases Nos. 11-6012 and 11-6018, Judge Maximo B. Ratunil,
presiding. Rollo, pp. 18-29.
2 Regretfully, the trial court judge did not know how to apply the Indeterminate
Sentence Law. He imposed indefinite minimum and maximum penalties He must
impose a specific penalty in both the minimum and maximum periods (Cf. People
v. Herbias, 333 Phil. 422; 265 SCRA 571 [1996]).
3 In Criminal Case No. 11-6012.
4 In Criminal Case No. 11-6018.
198
198 SUPREME COURT REPORTS ANNOTATED
People vs. Oyanib
informations charging accused Manolito Oyanib y Mendoza with murder and
parricide, as follows:
Criminal Case No. 6012
“That on or about September 4, 1995, in the City of Iligan, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, armed with a deadly
weapon to wit: a hunting knife about six inches long and with intent to kill and
evident premeditation and by means of treachery, did then and there willfully,
unlawfully and feloniously attack, assault, stab and wound one Jesus Esquierdo,
thereby inflicting upon him the following physical injuries, to wit:
Cardiorespiratory arrest
Hypovolemic shock irreversible
Multiple organ injury
Multiple stab wound chest & abdomen
and as a result thereof the said Jesus Esquierdo died.
“Contrary to and in violation of Article 248 of the Revised Penal Code with the
aggravating circumstances (sic) of evident premeditation.”5
Criminal Case No. 6018
“That on or about September 4, 1995, in the City of Iligan, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, having conceived
and (sic) deliberate intent to kill his wife Tita Oyanib, did then and there willfully,
unlawfully and feloniously and with evident premeditation, attack, assault, stab
and wound his wife, as a result of said attack, the said Tita Oyanib died.
“Contrary to and in violation of Article 246 of the Revised Penal Code.”6
The prosecutor recommended no bail for the temporary liberty of accused Manolito
Oyanib y Mendoza in both cases.
On September 11, 1995, accused voluntarily surrendered to the police
authorities7 and was immediately detained at the Iligan City Jail.8
_______________
P a g e 121 | 279
 5 Rollo, p. 11.
6 Rollo, p. 9.
7 Criminal Case No. 11-6018, RTC Record, p. 85.
8 Ibid., p. 14.
199
VOL. 354, MARCH 9, 2001 199
People vs. Oyanib
On January 17, 1996, the trial court arraigned accused Manolito Oyanib y Mendoza
by reading the informations against him said translating them into the Visayan
dialect.9 He pleaded not guilty to both charges.
As the two (2) cases arose from the same set of facts, the trial court conducted
a joint trial.
Accused Manolito Oyanib y Mendoza (hereafter Manolito) and Tita T. Oyanib
(hereafter Tita) were married on February 3, 197910 and had two (2) children,
Desilor and Julius. They lived in Purok 1, Tambacan, Iligan City.
In 1994, due to marital differences, Manolito and Tita separated, with Manolito
keeping custody of their two (2) children. Tita rented a room at the second floor of
the house of Edgardo Lladas (hereafter Edgardo), not far from the place where her
family lived.
At about 9:30 in the evening of September 4, 1995, while Edgardo and his
family were watching TV at the sala located at the ground floor of their house at
Purok 3-A, Tambacan, Iligan City, they heard a commotion coming from the second
floor rented by Tita. The commotion and the noise, lasted for quite some time. When
it died down, Edgardo went upstairs to check.11
Upstairs, Edgardo saw Tita wearing a duster, bloodied and sprawled on the
floor. He saw Manolito stabbing Jesus Esquierdo (hereafter Jesus) while sitting on
the latter’s stomach. Jesus was wearing a pair of long black pants. When Edgardo
asked Manolito what he was doing, accused told Edgardo not to interfere.
Thereafter, Edgardo left the house and called the police. Meanwhile, the
neighbors brought Tita to the hospital. She died on the way to the hospital. 12
SPO3 Eduard Tubil, police investigator, General Investigation Office, Iligan
City Police Command, Precinct I, Poblacion, Iligan City said that at about 9:00 in
the evening of September 4, 1995, while he was on duty, he received an information
regarding a stab-
_______________
9 Ibid., p. 39.
10 TSN, April 17, 1996, p. 13.
11 TSN, April 10, 1996, p. 6.
12 Ibid., pp. 7-10.
200
200 SUPREME COURT REPORTS ANNOTATED
People vs. Oyanib
bing incident at the Llagas residence at Purok 3-A, Tambacan, Iligan City.13
CRIMINAL LAW | PENALTIES
At the crime scene, SPO3 Tubil saw the lifeless body of Jesus lying face up with
several stab wounds in different parts of the body. Jesus was clad in t-shirt and
long pants. From the crime scene, he recovered a knife. Afterwards, he went to Dr.
Uy Hospital to check on Tita; he was informed that she was dead. Manolito was the
suspect in the killing of Jesus and Tita.14 The incident was recorded in the police
blotter as Entry No. 137138.15
On September 5, 1995, Dr. Leonardo A. Labanon, Medico-Legal Officer, Iligan
City examined the bodies of Jesus and Tita.16 Jesus sustained multiple stab
wounds, and those inflicted in the right and left chests and stomach were
fatal.17 The cause of death was “cardiorespiratory arrest, hypovolemic shock
irreversible, multiple organ injury and multiple stab wound chest and abdomen.”18
Likewise, Tita sustained several stab wounds, with the fatal wounds inflicted
in the left chest and right side of the abdomen. The cause of death was
“cardiorespiratory arrest, hypovolemic shock and multiple stab wound.”19
As heretofore stated, in 1994, following a series of arguments, Manolito and
Tita decided to live separately. Manolito retained custody of their two (2) children.
Immediately after the separation, Tita stayed at her friend Merlyn’s house for two
(2) months. Afterwards, she transferred to the Lladas residence, located at Purok
3, G. Tambacan, Iligan City, and rented the second floor. 20 The rented space
consisted mainly of a sala with one adjoining room. It was arranged in a manner
that if one enters the main entrance door, one is immediately led to the sala and
from the sala directly to the door of the adjoining room.
_______________
13 TSN, April 17, 1996, pp. 3-4.
14 Ibid., pp. 5-9.
15 TSN, April 18, 1996, p. 3.
16 TSN, April 17, 1996, p. 25.
17 Ibid., p. 17.
18 Ibid., p. 20.
19 Criminal Case No. 11-6018, RTC Record, Exhibit “E,” p. 6.
20 TSN, March 6, 1997, pp. 11-18.
201
VOL. 354, MARCH 12, 2001 201
People vs. Oyanib
Despite their separation, Manolito tried to win Tita back and exerted all efforts
towards reconciliation for the sake of the children. However, Tita was very
reluctant to reconcile with Manolito.21 In fact, she was very open about her
relationship with other men and would flaunt it in front of Manolito. One time, he
chanced upon his wife and her paramour, Jesus, in a very intimate situation by the
hanging bridge at Brgy. Tambacan, Iligan City.22 Manolito confronted Tita and
Jesus about this. He censured his wife and reminded her that she was still his wife.
They just ignored him; they even threatened to kill him.23
In the evening of September 4, 1995, after supper, his daughter Desilor handed
Manolito a letter from the Iligan City National High School. The letter mentioned
P a g e 122 | 279
that his son Julius failed in two (2) subjects and invited his parents to a meeting at
the school. Because he had work from 8:00 in the morning until 5:00 in the
afternoon the next day, Manolito went to Tita’s house to ask her to attend the school
meeting in his behalf.24
Upon reaching Tita’s rented place, he heard “sounds of romance” (kissing)
coming from the inside. He pried open the door lock using a hunting knife. He
caught his wife Tita and Jesus having sexual intercourse. Jesus was on top of Tita
and his pants were down to his knees.
Upon seeing him, Jesus kicked Manolito in the cheek. Manolito immediately
stabbed Jesus. Though Jesus was 5’9” in height and weighed about 70 kg., the
suddenness of the assault caused him to lose his balance and fall down. Manolito
took advantage of this opportunity and stabbed Jesus in the stomach. Tita left the
room upon seeing Manolito, only to come back armed with a Tanduay bottle. She
hit Manolito in the head, while at the same time shouting “kill him Jake, kill him
Jake.’25
In the commotion, Manolito stabbed Jesus, hitting him in the abdomen. Jesus
fell down and Manolito stabbed him again. Mean-
_______________
21 Ibid., p. 16.
22 Ibid., p. 49.
23 Rollo, p. 52.
24 Ibid., pp. 22-23.
25 Ibid., pp. 24-28.
202
202 SUPREME COURT REPORTS ANNOTATED
People vs. Oyanib
while, Tita stabbed Manolito in the arm with the broken Tanduay bottle. This
angered Manolito and he stabbed Tita in the left breast. He stabbed her three (3)
more times in different parts of her body. Tita fell near the lifeless body of her
paramour. It was at this point that Edgardo, the owner of the house Tita was
renting, appeared from the ground floor and inquired about what had happened.
Manolito told Edgardo not to interfere because he had nothing to do with it.
Thereafter, Manolito left the house of Edgardo and went to Kilumco, Camague,
Iligan City and stayed at the wake of his friend’s neighbor. He threw away the knife
he used in stabbing his wife and her paramour. At around 4:00 in the morning of
the following day, he went to Camague Highway to catch a bus for Lentogan,
Aurora, Zamboanga. While in Lentogan, he heard over radio DXIC that there was
a call for him to surrender. He heeded the call and gave himself up to the police
authorities in Precinct 2, Nonocan, Iligan City.26
When asked why he was carrying a knife when he went to his wife’s place,
Manolito said that he brought it for self-defense. Prior to the incident, he received
threats from his wife and her paramour, Jesus, that they would kill him so they
could live together.27
CRIMINAL LAW | PENALTIES
After trial, on May 26, 1997, the trial court promulgated a joint decision finding
accused guilty beyond reasonable doubt of the crimes charged. The dispositive
portion reads:
‘WHEREFORE, in the light of the foregoing findings and pronouncements and
having carefully observed the demeanor of witnesses, this Court hereby declares
accused MANOLITO OYANIB y Mendoza GUILTY beyond reasonable doubt of the
crime of Homicide (Crim. Case No. II-6012) and Parricide (Crim. Case No. II-6018)
and appreciating the two (2) mitigating circumstances of passion or obfuscation and
voluntary surrender without any aggravating circumstances to consider, this Court
sentences accused Manolito Oyanib y Mendoza to suffer an imprisonment as
follows:
1. “1)In Criminal Case No. II-6012:
_______________
26TSN, March 6, 1997, pp. 30-35.
27Ibid., pp. 32, 45-46.
203
VOL. 354, MARCH 12, 2001 203
People vs. Oyanib
To an Indeterminate Penalty ranging from SIX (6) MONTHS ONE (1) DAY to SIX
(6) YEARS as Minimum to Six (6) YEARS ONE (1) DAY TO EIGHT (8) YEARS as
Maximum; to indemnify heirs of Jesus Esquierdo the sum of P50,000.00 as civil
indemnity, and to pay the costs.
1. “2)In Criminal Case No. II-6018:
To RECLUSION PERPETUA pursuant to Republic Act No. 7659; to indemnify
heirs of his wife P50,000.00 as civil indemnity and to pay the costs.
“It is likewise ordered that the aforesaid imprisonment is subject to the forty (40)
years limitation prescribed in Article 70 of the Revised Penal Code.
“Accused is likewise entitled to full credit of his preventive imprisonment.
“SO ORDERED.
“Iligan City, Philippines, May 26, 1997.
“MAXIMO B. RATUNIL
Presiding Judge”28
On June 17, 1997, accused Manolito Oyanib y Mendoza interposed an appeal from
the joint decision of the trial court to the Supreme Court.29
Accused admitted the killings. He argued that he killed them both under the
exceptional circumstances provided in Article 247 of the Revised Penal Code. He
raised several errors allegedly committed by the trial court, which boiled down to
the basic issue of whether accused is entitled to the exceptional privilege under
Article 247 of the Revised Penal Code.30 He questioned the trial court’s appreciation
of the facts and the evidence, contending that it ignored and overlooked vital pieces
P a g e 123 | 279
of physical evidence material to the defense of the accused, like the photograph of
the lifeless body of Jesus. Accused contends that the photograph graphically
showed that Jesus’ pants were wide open, unzipped and unbuttoned, revealing that
he was not wearing any underwear, lending credence
_______________
28 Rollo, pp. 18-29, at p. 29.
29 Criminal Case No. II-6081, RTC Record, p. 112.
30 Rollo, pp. 56-57.
204
204 SUPREME COURT REPORTS ANNOTATED
People vs. Oyanib
to his defense that he caught his wife and her paramour in the act of sexual
intercourse. On the other hand, the Solicitor General submitted that accused-
appellant failed to discharge the burden of proving, by clear and convincing
evidence, that he killed the victims under the exceptional circumstances
contemplated in Article 247 of the Revised Penal Code. Hence, the trial court did
not err in denying him the exempting privilege under the Article.31
We find the appeal meritorious.
At the outset, accused admitted killing his wife and her paramour. He invoked
Article 247 of the Revised Penal Code as an absolutory and an exempting cause.
“An absolutory cause is present ‘where the act committed is a crime but for reasons
of public policy and sentiment there is no penalty imposed.’ ”32
Having admitted the killing, it is incumbent upon accused to prove the
exempting circumstances to the satisfaction of the court in order to be relieved of
any criminal liability Article 247 of the Revised Penal Code prescribes the following
essential elements for such a defense: (1) that a legally married person surprises
his spouse in the act of committing sexual intercourse with another person; (2) that
he kills any of them or both of them in the act or immediately thereafter; and (3)
that he has not promoted or facilitated the prostitution of his wife (or daughter) or
that he or she has not consented to the infidelity of the other spouse.33 Accused
must prove these elements by clear and convincing evidence, otherwise his defense
would be untenable. “The death caused must be the proximate result of the outrage
overwhelming the accused after chancing upon his spouse in the act of infidelity.
Simply put, the killing by the husband of his wife must concur with her flagrant
adultery.”34
There is no question that the first element is present in the case at bar. The
crucial fact that accused must convincingly prove to the
_______________
Ibid., pp. 125-126.
31
People v. Talisic, 344 Phil. 51, 59; 278 SCRA 517 [1997].
32
33 People v. Wagas, 171 SCRA 69, 73 [1989]; People v. Talisic, supra, Note 32,
at p. 60; citing People v. Gelaver, 223 SCRA 310, 313-314 [1993].
CRIMINAL LAW | PENALTIES
34People v. Wagas, supra, Note 33, at p. 73.
205
VOL. 354, MARCH 12, 2001 205
People vs. Oyanib
court is that he killed his wife and her paramour in the act of sexual intercourse or
immediately thereafter.
After an assiduous analysis of the evidence presented and the testimonies of
the witnesses, we find accused to have acted within the circumstances
contemplated in Article 247 of the Revised Penal Code. Admittedly, accused-
appellant surprised his wife and her lover in the act of sexual intercourse.
To the mind of the court, what actually happened was that accused chanced
upon Jesus at the place of his wife. He saw his wife and Jesus in the act of having
sexual intercourse. Blinded by jealousy and outrage, accused stabbed Jesus who
fought off and kicked the accused. He vented his anger on his wife when she
reacted, not in defense of him, but in support of Jesus. Hence, he stabbed his wife
as well several times. Accused Manolito Oyanib y Mendoza surrendered to the
police when a call for him to surrender was made.
The law imposes very stringent requirements before affording the offended
spouse the opportunity to avail himself of Article 247, Revised Penal Code. As the
Court put it in People v. Wagas:35
“The vindication of a Man’s honor is justified because of the scandal an unfaithful
wife creates; the law is strict on this, authorizing as it does, a man to chastise her,
even with death. But killing the errant spouse as a purification is so severe as that
it can only be justified when the unfaithful spouse is caught in flagrante
delicto, and it must be resorted to only with great caution so much so that the law
requires that it be inflicted only during the sexual intercourse or immediately
thereafter.”
WHEREFORE, the Court REVERSES the appealed decision of the Regional Trial
Court, Branch 02, Iligan City in Criminal Cases Nos. II-6012 and II-6018. The
Court sentences accused Manolito Oyanib y Mendoza to two (2) years and four (4)
months of des-
_______________
35People v. Wagas, supra, Note 33, at p. 74.
206
206 SUPREME COURT REPORTS ANNOTATED
People vs. Oyanib
tierro.36 He shall not be permitted to enter Iligan City, nor within a radius, of one
hundred (100) kilometers from Iligan City.37
Costs de oficio.
SO ORDERED.
Davide, Jr. (Chairman), Puno, Kapunan and Ynares-Santiago, JJ.,
concur.
Judgment reversed.
P a g e 124 | 279
 Notes.—American jurisprudence, on cases involving statutes in that
jurisdiction which are in pari materia with ours, yields the rule that after a divorce
has been decreed, the innocent spouse no longer has the right to institute proceedings
against the offenders where the statute provides that the innocent spouse shall
have the exclusive right to institute a prosecution for adultery. (Pilapil vs. Ibay-
Somera, 174 SCRA 653 [1989])
Under Article 247 of the Revised Penal Code, the killing of the wife by the
husband (or vice versa) is justified if the husband kills her while engaged in sexual
intercourse with another man or immediately thereafter. (People vs. Cabalhin, 231
SCRA 486 [1994])
The kind of attitude of a husband allegedly merely standing still and endure
the illicit sexual congress between his wife and her supposed paramour from
beginning to end, and of just going after his wife’s lover when the latter is through
with his lovemaking and only after he would have put on his clothes and started to
flee, defies human nature—truly, there is no real test of truth in the testimony of
a witness except gauge it consonantly with human knowledge, observation, and
experience. (People vs. Velasco, 351 SCRA 539 [2001])
——o0o——
_______________
[No. 38332. December 14, 1933]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and
appellee, vs. VALERIANO DUCOSIN, defendant and appellant.
1. 1.INDETERMINATE SENTENCE LAW, CONSTRUED; MAXIMUM
AND MlNIMUM PENALTIES.—Under section 1 of Act No. 4103 the
court must, instead of a single fixed penalty, determine two penalties,
referred to in the Indeterminate Sentence Act as the "maximum" and
"minimum". The prisoner must' serve the minimum penalty before he is
eligible for parole under the provisions of Act No. 4103, which leaves the
period between the minimum and maximum penalty indeterminate in
the sense that he may, under the conditions set out in said Act, be
released from serving said period in whole or in part. He must be
sentenced, therefore, to imprisonment for a period which is not more than
the "maximum" nor less than the "minimum", as these terms are used in
the Indeterminate Sentence Law.
1. 2.ID.; ID.—The maximum penalty must be determined, in any case
punishable by the Revised Penal Code, in accordance with the rules and
provisions of said Code exactly as if Act No. 4103, the Indeterminate
CRIMINAL LAW | PENALTIES
Sentence Law, had never been passed. It was not the purpose of said Act
to make inoperative any of the provisions of the Revised Penal Code.
Neither the title nor the body of the Act indicates any intention on the
part of the Legislature to repeal or amend any of the provisions of the
Revised Penal Code.
1. 3.ID.; MINIMUM PENALTY.—In determining the "minimum" penalty
Act No. 4103 confers upon the courts in the fixing of penalties the widest
discretion that the courts have ever had. The determination of the
"minimum" penalty presents two aspects: first, the more or less
mechanical determination of the extreme limits
110
110 PHILIPPINE REPORTS ANNOTATED
People vs. Ducosin
1. of the minimum imprisonment period;, and second, the broad question of
the factors and circumstances that should guide the discretion of the
court in fixing the minimum penalty within the ascertained limits. We
construe the expression in section 1 "the penalty next lower to that
prescribed by said Code for the offense" to mean the penalty next lower
to that determined by the court in the case before it as the maximum
(that is to say the correct penalty fixed by the Revised Penal Code).
1. 4.ID.; ID.—The Indeterminate Sentence Law, Act No. 4103, simply
provides that the "minimum" shall "not be less than the minimum
imprisonment period of the penalty next lower." In other words, it is left
entirely within the discretion of the court to fix the minimum
imprisonment anywhere within the range of the next lower penalty
without reference to the degrees into which it may be subdivided.
1. 5.ID.; ID.—Keeping in mind the basic purpose of the Indeterminate
Sentence Law "to uplift and redeem valuable human material, and
prevent unnecessary and excessive deprivation of "personal liberty and
economic usefulness" (Message of the GovernorGeneral, Official Gazette
No. 92, vol. XXXI, August 3, 1933), it is necessary to consider the
criminal, first, as an individual and, second, as a member of society. In a
word, the Indeterminate Sentence Law aims to individualize the
administration of our criminal law to a degree not heretofore known in
these Islands. Some factors to be taken into consideration are indicated.
1. 6.ID.; ID.—Act No. 4103 does not require the court to fix the minimum
term of imprisonment in the minimum period of the degree next lower to
the maximum penalty.
P a g e 125 | 279
APPEAL from a judgment of the Court of First Instance of Manila. Diaz, J.
The facts are stated in the opinion of the court.
Alejandra F. Antonio for appellant.
Attorney-General Jaranilla for appellee.
BUTTE, J.:
This appeal from a judgment of the Court of First Instance of Manila convicting the
appellant of the crime of frustrated murder was referred by the first division to
111
VOL. 59, DECEMBER 14, 1933 111
People vs. Ducosin
the court in banc for the proper interpretation and application of Act No. 4103 of
the Philippine Legislature approved on December 5, 1933, commonly known as the
"Indeterminate Sentence Law". As this is the first case which has come before us
involving the Indeterminate Sentence Law, it will be convenient to set out here
some of its provisions.
Section 1 of Act No. 4103 is as follows:
"Hereafter, in imposing a prison sentence for an offense punished by acts of the
Philippine Legislature, otherwise than by the Revised Penal Code, the court shall
order the accused to be imprisoned for a minimum term, which shall not be less
than the minimum term of imprisonment provided by law f or the offense, and f or
a maximum term which shall not exceed the maximum fixed by law; and where the
offense is punished by the Revised Penal Code, or amendments thereto, the court
shall sentence the accused to such maximum as may, in view of attending
circumstances, be properly imposed under the present rules of the said Code, and
to a minimum which shall not be less than the minimum imprisonment period of
the penalty next lower to that prescribed by said Code for the offense. Except as
provided in section two hereof, any person who shall have been so convicted and
sentenced and shall have served the minimum sentence imposed hereunder, may
be released on parole in accordance with the provisions of this Act."
Section 2 is as follows:
"This Act shall not apply to persons convicted of offenses punished with death
penalty or lif e imprisonment; to those convicted of treason, conspiracy or proposal
to commit treason; to those convicted of misprision of treason, sedition or espionage;
to those convicted of piracy; to those who are habitual delinquents; to those who
shall have escaped from confinement or evaded sentence; to those who having been
granted conditional pardon by the Chief Executive shall have violated the terms
thereof; to those whose maximum term of imprisonment does not exceed one year;
nor
112
112 PHILIPPINE REPORTS ANNOTATED
People vs. Ducosin
to those already sentenced by final judgment at the time of approval of this Act,
except as provided in section five hereof."
CRIMINAL LAW | PENALTIES
Section 3 of Act No. 4103 creates a "Board of Indeterminate Sentence" to be
composed of the Secretary of Justice as chairman and four members to be appointed
by the Governor-General, with the advice and consent of the Philippine Senate.
This section describes the qualifications of the members. Section 4 gives the board
authority to adopt rules of procedure and provides for the compensation of the
members.
Section 5 makes it the duty of the board to study the physical, mental and moral
record of the prisoners who shall be eligible to parole and authorizes the board to
determine the proper time for the release of such prisoners. After a prisoner has
served the "minimum penalty" imposed upon on him and the board is satisfied that
such prisoner is fitted by his training for release and that there is a reasonable
probability that he will not violate the law again and that his release "will not be
incompatible with the welfare of society", the board may in its discretion authorize
the release of such prisoner on parole. The board may also recommend the release
on parole of other prisoners previously convicted of any offense other than those
named in section 2.
Section 6 provides for the surveillance of prisoners released on parole for a
period "equivalent to the remaining portion of the maximum sentence imposed
upon him or until final release and discharge by the Board of Indeterminate
Sentence." Section 7 provides that a certified copy of the board's order of conditional
or final release shall be filed with the court and with the Chief of Constabulary.
Section 8 provides that any prisoner who violates any of the conditions of his
parole, who violates any law during the period of surveillance for which he has been
convicted, shall be subject to re-arrest and confinement and "shall serve the
remaining unexpired portion of the maximum
113
VOL. 59, DECEMBER 14, 1933 113
People vs. Ducosin
sentence for which he was originally committed to prison" unless the board grants
a new parole.
Section 9 provides that Act No. 4103, the Indeterminate Sentence Law, shall
not be construed to impair the powers given to the Governor-General under section
64 of the Administrative Code or the Organic Act of the Philippine Islands.
By its terms, Act No. 4103 became law upon its approval, that is to say, on
December 5, 1933.
In the case before us, Valeriano Ducosin was tried on September 30, 1932, for
the crime of frustrated murder upon the following information:
"That on or about the 23d day of September, 1932, in the City of Manila, Philippine
Islands, the said accused did then and there willfully, unlawfully and feloniously,
and with intent to kill, treacherously attack, assault and wound one Rafael
Yanguas by then and there suddenly and without any warning, stabbing the latter
with a knife, thereby inflicting upon him several wounds in different parts of the
body, some of which are necessarily mortal, thus performing all the acts of
execution which would produce the death of the said Rafael Yanguas as a
consequence, but which, nevertheless, did not produce it by reason of causes
P a g e 126 | 279
independent of the will of said accused, that is, by the timely intervention of
medical assistance.
"Contrary to law."
Upon arraignment the accused pleaded guilty and was sentenced to ten years and
one day of prisión mayor with the accessory penalties prescribed by law and to pay
the costs. The penalty for the crime of murder, under article 248 of the Revised
Penal Code, is reclusión temporal in its maximum period to death. Under article
50, the penalty for a frustrated felony is the one next lower in degree to that
prescribed for the consummated felony, which in the present case is prisión
mayor in its maximum period to reclusión temporal in its medium period, or from
ten years and one day to seventeen years and four months. The accused having
pleaded guilty, this extenuating circumstance, in the absence of any aggravating
circumstance, fixes the penalty within the minimum period, that is to say, from ten
years and one day to twelve years, leaving to the discretion of the court the precise
time to be served within said range, i. e., not less than ten years and one day nor
more than.twelve years. The penalty imposed by the trial judge being within this
range is correct and therefore is the penalty prescribed by the Revised Penal Code
for the offense which this accused has committed.
As Act No. 4103, the Indeterminate Sentence Law, was enacted after this
appeal was lodged in this court, we are now required to revise the sentence imposed
upon the appellant and to bring the same into conformity with Act No. 4103.
It will be observed from section 1 of said Act that the court must now, instead
of a single fixed penalty, determine two penalties, referred to in the Indeterminate
Sentence Act as the "maximum" and "minimum". The prisoner must serve the
minimum penalty before he is eligible for parole under the provisions of Act No.
4103, which leaves the period between the minimum and maximum penalty
indeterminate in the sense that he may, under the conditions set out in said Act, -
be released from serving said period in whole or in part. He must be sentenced,
therefore, to imprisonment for a period which is not more than the "maximum" nor
less than the "minimum", as these terms are used in the Indeterminate Sentence
Law.
This leads up to the important question: How shall the "maximum" and the
"minimum" penalty be determined?
The maximum penalty must be determined, in any case punishable by the
Revised Penal Code, in accordance with the rules and provisions of said Code
exactly as if Act No. 4103, the Indeterminate Sentence Law, had never been passed.
We think it is clear from a reading of Act No. 4103 that it was not its purpose to
make inoperative any of the provisions of the Revised Penal Code. Neither the
115
VOL. 59, DECEMBER 14, 1933 115
People vs. Ducosin
title nor the body of the Act indicates any intention on the part of the Legislature
to repeal or amend any of the provisions of the Revised Penal Code. The legislative
history of the Act further shows that attention was called to the necessity for taking
care "so as not to bring the provisions of this bill in conflict with the provisions of
CRIMINAL LAW | PENALTIES
our penal laws, especially with those treating with penalties." (Committee Report,
House of Representatives, H-3321, Ninth Philippine Legislature, Third Session.)
The last mentioned report gives an illustration of the application of the
Indeterminate Sentence Law to offenses penalized by the Revised Penal Code:
"Suppose that a man is found guilty of malversation of public funds in the
amount of P10,000. No mitigating nor aggravating circumstances are present.
Under this law the court may impose on him a maximum sentence not exceeding
ten years and eight months but not less than nine years, four months and one
day (see art. 217, No. 3, Revised Penal Code), and a minimum which shall not be
less than four years, two months and one day (the minimum imprisonment period
of prisión correccional in its maximum to prisión mayor in its minimum. See article
6'1, Revised Penal Code). The court, therefore, may sentence the accused to be
imprisoned for not less than five years nor more than ten years or for not less than
seven years nor more than ten years and eight months, etc."
It will be seen from the foregoing example that the "maximum" is determined
in accordance with the provisions of the Revised Penal Code. In the example given
reference is made to article 217, paragraph 3, of the Revised Penal Code which
provides that the defendant shall suffer the penalty of prisión mayor in its medium
and maximum period. The penalty is placed in the medium degree because of the
absence of mitigating or aggravating circumstance, that is to say, anywhere
between nine years, four months and one day and ten years and eight months in
the discretion of the court. In the case on appeal here the
116
116 PHILIPPINE REPORTS ANNOTATED
People vs. Ducosin
penalty was imposed in the minimum of the proper penalty under the Revised
Penal Code because of the plea of guilty, that is to say, between ten years and one
day and twelve years in the discretion of the court. This discretion is in nowise
impaired or limited by Act No. 4103. The trial court, in conformity with the
discretion conferred upon it by the Revised Penal Code, might have assessed the
penalty at, let us say, eleven years. We wish to make it clear that Act No. 4103 does
not require this court to assess the said penalty at 12 years, which is the longest
time of imprisonment within the minimum degree.
We find, therefore, that ten years and one day of imprisonment conforms to the
provisions and rules of the Revised Penal Code and is therefore fixed and
established as the maximum of the sentence which shall be imposed upon the
appellant.
We come now to determine the "minimum imprisonment period" referred to in
Act No. 4103. Section 1 of said Act provides that this "minimum which shall not be
less than the minimum imprisonment period of the penalty next lower to that
prescribed by said Code for the offense." We are here upon new ground. It is in
determining the "minimum" penalty that Act No. 4103 confers upon the courts in
the fixing of penalties the widest discretion that the courts have ever had. The
determination of the "minimum" penalty presents two aspects: first, the more or
less mechanical determination of the extreme limits of the minimum imprisonment
period; and second, the broad question of the factors and circumstances that should
P a g e 127 | 279
guide the discretion of the court in fixing the minimum penalty within the
ascertained limits.
We construe the expression in section 1 "the penalty next lower to that
prescribed by said Code for the offense" to mean the penalty next lower to that
determined by the court in the case before it as the maximum (that is to say the
correct penalty fixed by the Revised Penal Code, see our discussion above). In the
example which the Legisla-
117
VOL. 59, DECEMBER 14, 1933 117
People vs. Ducosin
ture had before it in the Committee Report above mentioned, the maximum of the
sentence was correctly stated to be the medium degree of prisión mayor in its
medium and maximum period. The penalty next lower is prisión correccional in its
maximum degree to prisión mayor in its minimum degree (article 61, paragraph 4,
Revised Penal Code), that is to say, anywhere from f our years, two months and one
day to eight years. The Indeterminate Sentence Law, Act No. 4103, simply provides
that the "minimum" shall "not be less than the minimum imprisonment period of
the penalty next lower." In other words, it is left entirely within the discretion of
the court to fix the minimum of the penalty anywhere between four years, two
months and one day and eight years. In the example given by the committee they
stated that the court might fix the minimum penalty at five years or seven years.
In the case before us on this appeal the next lower penalty to the maximum
already determined as aforesaid, is prisión correccional in its maximum period
to prisión mayor in its medium period, that is to say, from four years, two months
and one day to ten years. As stated, it is in the discretion of the court to fix the time
of imprisonment within the said range without reference to the technical
subdivisions of maximum degree, medium degree and minimum degree, and in this
particular the courts are vested as stated with a wider discretion than they ever
had before.
We come now to the second aspect of the determination of the minimum
penalty, namely, the considerations which should guide the court in fixing the term
or duration of the minimum period of imprisonment. Keeping in mind the basic
purpose of the Indeterminate Sentence Law "to uplift and redeem valuable human
material, and prevent unnecessary and excessive deprivation of personal liberty
and economic usefulness" (Message of the Governor-General. Official Gazette No.
92, vol. XXXI, August 3, 1933), it is necessary to consider the criminal, first, as an
individual and, second, as a member of society. This opens up an almost limitless
field of investigation and study which it is
118
118 PHILIPPINE REPORTS ANNOTATED
People vs. Ducosin
the duty of the court to explore in each case as far as is humanly possible, with the
end in view that penalties shall not be standardized but fitted as far as is possible
to the individual, with due regard to the imperative necessity of protecting the
social order.
CRIMINAL LAW | PENALTIES
Considering the criminal as an individual, some of the factors that should be
considered are: (1) His age, especially with reference to extreme youth or old age;
(2) his general health and physical condition; (3) his mentality, heredity and
personal habits; (4) his previous conduct, environment and mode of life (and
criminal record if any); (5) his previous education, both intellectual and moral; (6)
his proclivities and aptitudes for usefulness or injury to society; (7) his demeanor
during trial and his attitude with regard to the crime committed; (8) the manner
and circumstances in which the crime was committed; (9) the gravity of the offense
(note that section 2 of Act No. 4103 excepts certain grave crimes—this should be
kept in mind in assessing the minimum penalties for analogous crimes).
In considering the criminal as a member of society, his relationship, first,
toward his dependents, family and associates and their relationship with him, and
second, his relationship towards society at large and the State are important
factors. The State is concerned not only in the imperative necessity of protecting
the social organization against the criminal acts of destructive individuals but also
in redeeming the individual for economic usefulness and other social ends. In a
word, the Indeterminate Sentence Law aims to individualize the administration of
our criminal law to a degree not heretofore known in these Islands. With the
foregoing principles in mind as guides, the courts can give full effect to the
beneficent intention of the Legislature.
It is our duty now to assess the minimum imprisonment period under Act No.
4103 in the case before us on this appeal. Unfortunately, as this defendant was
convicted before Act No. 4103 became effective, and as we know
119
VOL. 59, DECEMBER 14, 1933 119
Sy Tiangco vs. Pablo and Apao
nothing of his antecedents because his plea of guilty rendered it unnecessary to
take any testimony, we are confined to the record before us. He plead guilty to all
of the acts which constitute the crime of murder and only the timely intervention
of medical assistance prevented the death of his victim and the prosecution of the
appellant for murder. He was given the f ull benefit of the plea of guilty in the fixing
of the maximum of the sentence. With such light as we have received from the
record in this case, we have concluded that a reasonable and proper minimum
period of imprisonment should be seven years, which is within the "range of the
penalty next lower in degree to the maximum, that is to say, within the range from
four years, two months and one day to ten years of prisión correccional in its
maximum period to prisión mayor in its medium period. We repeat that Act No.
4103 does not require the court to fix the minimum term of imprisonment in the
minimum period of the degree next lower to the maximum penalty.
The judgment of the court below is modified to this extent: that the defendant-
appellant is hereby sentenced to a maximum penalty of ten years and one day
of prisión mayor in its maximum degree, and to a minimum imprisonment period
of seven years, and as thus modified, the judgment appealed from is affirmed. With
costs de oficio.
Avanceña, C. J., Street, Malcolm, Villa-Real, Abad Santos, Hull,
Vickers, and Imperial, JJ., concur.
P a g e 128 | 279
 Judgment modified.
[No. L-3246. November 29, 1950]
THE PEOPLE OF THE PHILIPPINES, plaintiff and
appellee, vs. ABELARDO FORMIGONES, defendant and appellant.
1. 1.CRIMINAL LAW; PARRICIDE; IMBECILITY AS EXEMPTING
CIRCUMSTANCE; REQUISITES.—In order that a person could be
regarded as an imbecile within the meaning of article 12 of the Revised
Penal Code so as to be exempt from criminal liability, he must be
deprived completely of reason or discernment and freedom of the will at
the time of committing the crime.
1. 2.ID.; ID.; ID.; ID.—A man who could feel the pangs of jealousy and take
violent measures to the extent of killing his wife whom he suspected of
being unfaithful to him, in the belief that in doing so he was vindicating
his honor, could hardly be regarded as an imbecile.
1. 3.ID. ; ID. ; FEEBLEMINDEDNESS AND ACT IN A FIT OF JEALOUSY
AS MITIGATING CIRCUMSTANCES.—Feeblemindedness of the
accused warrants the finding in his favor of the mitigating circumstance
provided for in either paragraph 8 or paragraph 9 of article 13 of the
Revised Penal Code and the fact that the accused evidently killed his wife
in a fit of jealousy, he is, likewise, entitled to the mitigating circumstance
in paragraph 6 of the same article—that of having acted upon an impulse
so powerful as naturally to have produced passion or obfuscation.
1. 4.ID.; ID.; PENALTY.—The penalty applicable for parricide under article
246 of the Revised Penal Code is composed only of two indivisible
penalties, to wit, reclusión perpetua to death. Altho the commission of the
act is attended by some mitigating circumstance without any
aggravating circumstance to offset them, article 63 of the said code is the
one applicable and must be applied.
1. 5.ID.; ID.; ATTENTION OF THE CHIEF EXECUTIVE INVITED TO THE
CASE.—When the court believes that the appellant is entitled to a
lighter penalty the case should be brought to the attention of the Chief
Executive who, in his discretion may reduce the penalty to that next
lower to reclusión perpetua to death or otherwise apply executive
clemency in the manner he sees fit.
APPEAL from a judgment of the Court of First Instance of Camarines Sur. Palacio,
J.
The facts are stated in the opinion of the Court.
659
Luis Contreras f or appellant.
CRIMINAL LAW | PENALTIES
Solicitor General Felix Bautista Angelo and Solicitor Felix V. Makasiar for
appellee.
MONTEMAYOR, J.
This is an appeal from the decision of the Court of First Instance of Camarines Sur
finding the appellant guilty of parricide and sentencing him to reclusión
perpetua, to indemnify the heirs of the deceased in the amount of P2,000, and to
pay the costs. The f ollowing f acts are not disputed.
In the month of November, 1946, the defendant Abelardo Formigones was
living on his farm in Bahao, Libmanan, municipality of Sipocot, Camarines Sur,
with his wif e, Julia Agricola, and his five children. From there they went to live in
the house of his half-brother, Zacarias Formigones, in the barrio of Binahian of the
same municipality of Sipocot, to find employment as harvesters of palay. After
about a month's stay or rather on December 28, 1946, late in the afternoon, Julia
Agricola was sitting at the head of the stairs of the house. The accused, without
any previous quarrel or provocation whatsoever, took his bolo from the wall of the
house and stabbed his wife, Julia, in the back, the blade penetrating the right lung
and causing a severe hemorrhage resulting in her death not long thereafter. The
blow sent Julia toppling down the stairs to the ground, immediately followed by
her husband Abelardo who, taking her up in his arms, carried her up the house,
laid her on the floor of the living room and then lay down beside her. In this position
he was found by the people who came in response to the shouts for help made by
his eldest daughter, Irene Formigones, who witnessed and testified to the stabbing
of her mother by her father.
Investigated by the Constabulary, defendant Abelardo signed a written
statement, Exhibit D, wherein he admitted that he killed his wife. The motive was
admittedly that of jealousy because according to his statement he used to have
quarrels with his wife for the reason that he often
660
660 PHILIPPINE REPORTS ANNOTATED
People vs. Formigones
saw her in the company of his brother Zacarias; that he suspected that the two were
maintaining illicit relations because he noticed that his wife had become indifferent
to him (defendant).
During the preliminary investigation conducted by the justice of the peace of
Sipocot, the accused pleaded guilty, as shown by Exhibit E. At the trial of the case
in the Court of First Instance, the def endant entered a plea of not guilty, but did
not testify. His counsel presented the testimony of two guards of the provincial jail
where Abelardo was confined to the effect that his conduct there was rather strange
and that he behaved like an insane person; that sometimes he would remove his
clothes and go stark naked in the presence of his fellow prisoners; that at times he
would remain silent and indifferent to his surroundings; that he would refuse to
take a bath and wash his clothes until forced by the prison authorities; and that
sometimes he would sing in chorus with his fellow prisoners, or even alone by
himself without being asked; and that once when the door of his cell was opened,
P a g e 129 | 279
he suddenly darted from Inside into the prison compound apparently in an attempt
to regain his liberty.
The appeal is based merely on the theory that the appellant is an imbecile and
therefore exempt from criminal liability under article 12 of the Revised Penal Code.
The trial court rejected this same theory and we are inclined to agree with the lower
court. According to the very witness of the defendant, Dr. Francisco Gomez, who
examined him, it was his opinion that Abelardo was suffering only f rom f
eeblemindedness and not imbecility and that he could distinguish right from
wrong.
In order that a person could be regarded as an imbecile within the meaning of
article 12 of the Revised Penal Code so as to be exempt from criminal liability, he
must be deprived completely of reason or discernment and freedom of the will at
the.time of committing the crime. The provisions of article 12 of the Revised Penal
Code are copied
661
VOL. 87, NOVEMBER 29, 1950 661
People vs. Formigones
from and based on paragraph 1, article 8, of the old Penal Code of Spain.
Consequently, the decisions of the Supreme Court of Spain interpreting and
applying said provisions are pertinent and applicable. We quote Judge Guillermo
Guevara on his Commentaries on. the Revised Penal Code, 4th Edition, pages 42
to 48
"The Supreme Court of Spain held that in order that this exempting circumstance
may be taken into account, it is necessary that there be a complete deprivation of
intelligence in committing 'the act, that is, that the accused be deprived of reason;
that there be no responsibility for his own acts; that he acts without the least
discernment; 18 that there be a complete absence of the power to discern, or that
there be a total deprivation of freedom of the will For this reason, it was held that
the imbecility or insanity at the time of the commission of the act should absolutely
deprive a person of intelligence or f reedom of will, because mere abnormality
of his mental faculties does not exclude imputability.19
"The Supreme Court of Spain likewise held that deaf-muteness cannot be
equalled to imbecility or insanity.
"The allegation of insanity or imbecility must be clearly proved. without
positive evidence that the defendant had previously lost his reason or was
demented, a few moments prior to or during the perpetration of the crime, it will
be presumed that he was in a normal condition. Acts penalized by law are always
reputed to be volun-tary, and it is improper to conclude that a person acted
unconsciuosly, in order to relieve him from liability, on the basis of his mental
condition, unless his insanity and absence of will are proved."
As to the strange behaviour of the accused during his confinement, assuming that
it was not feigned to stimulate insanity, it may be attributed either to his being-
feebleminded or eccentric. or to a morbid mental condition produced by remorse at
having killed his wife. From the case of United States vs. Vaquilar (27 Phil., 88),
we quote the following syllabus-
CRIMINAL LAW | PENALTIES
"Testimony of eye-witnesses to a parricide, which goes 110 further than to indicate
that the accused was moved by a wayward or hyste
_______________
Decision of Supreme Court of Spain of November 21, 1891; 47 Jur.
18
Crim., 413.
19 Decision of Supreme Court of Spain of April 20. 1911; 86 Jur. Crim., 94, 97.
662
662 PHILIPPINE REPORTS ANNOTATED
People vs. Formigones
ical burst of anger or passion, and other testimony to the effect that, while in
confinement awaiting trial, defendant acted absentmindedly at times, is not
sufficient to establish the defense of insanity. The conduct of the defendant while
in confinement appears to have been due to a morbid mental condition produced by
remorse."
After a careful study of the record, we are convinced that the appellant is not an
imbecile. According to the evidence, during his marriage of about 16 years, he has
not done anything or conducted himself in anyway so as to warrant an opinion that
he was or is an imbecile. He regularly and dutifully cultivated his farm, raised five
children, and supported his family and even maintained in school his children of
school age, with the fruits of his work. Occasionally, as a side line he made copra.
And a man who could feel the pangs of jealousy and take violent measures to the
extent of killing his wif e whom he suspected of being unfaithful to him, in the belief
that in doing so he was vindicating his honor, could hardly be regarded as an
imbecile. Whether or not his suspicions were justified, is of little or no import. The
f act is that he believed her f aithless.
But to show that his feeling of jealousy had some color of justification and was
not a mere product of hallucination and aberrations of a disordered mind as that
an imbecile or a lunatic, there is evidence to the following effect. In addition to the
observations made by appellant in his written statement Exhibit D, it is said that
when he and his wife first went to live in the house of his half brother, Zacarias
Formigones, the latter was living with his grandmother, and his house was vacant.
However, after the family of Abelardo was settled in the house, Zacarias not only
frequented said house but also used to sleep there nights. All this may have aroused
and even partly confirmed the suspicions of Abelardo, at least to his way of
thinking.
The appellant has all the sympathies of the Court. He seems to be one of those
unfortunate beings, simple and
663
VOL. 87, NOVEMBER 29, 1950 663
People vs. Formigones
even f eebleminded, whose f aculties have not been f ully developed. His action in
picking up the body of his wife after she fell down to the ground, dead, taking her
upstairs, laying her on the floor, and lying beside her for hours, shows his feeling
P a g e 130 | 279
of remorse at having killed his loved one though he thought that she had betrayed
him. Al though he did not exactly surrender to the authorities, still he made no
effort to flee and compel the police to hunt him down and arrest him. In his written
statement he readily admitted that he killed his wife, and at the trial he made no
effort to deny or repudiate said written statement, thus saving the government all
the trouble and expense of catching him, and insuring his conviction.
Although the deceased was struck in the back, we are not prepared to find that
the aggravating circumstance of treachery attended the commission of the crime.
It seems that the prosecution was not intent on proving it. At least said aggravating
circumstance was not alleged in the complaint either in the justice of the peace
court or in the Court of First Instance. We are inclined to give him the benefit of
the doubt and we therefore decline to find the existence of this aggravating
circumstance. On the other hand, the fact that the accused is feebleminded
warrants the finding in his f avor of the mitigating circumstance provided for in
either paragraph 8 or paragraph 9 of article 13 of the Revised Penal Code, namely,
that the accused is "suffering some physical defect which thus restricts his means
of action, defense or communication with his fellow beings," or such illness "as
would diminish the exercise of his will power." To this we may add the mitigating
circumstance in paragraph 6 of the same article,—that of having acted upon an
impulse so powerful as naturally to have produced passion or obfuscation. The
accused evidently killed his wife in a fit of jealousy.
With the presence of two mitigating circumstances without any aggravating
circumstance to offset them, at first we thought of the possible applicability of the
provisions
664
664 PHILIPPINE REPORTS ANNOTATED
People vs. Formigones
of article 64, paragraph 5 of the Revised Penal Code for the purpose of imposing
the penalty next lower to that prescribed by article 246 for parricide, which
is reclusión perpetua to death. It will be observed however, that article 64 refers to
the application of penalties which contain three periods whether it be a single
divisible penalty or composed of three different penalties, each one of which f orms
a period in accordance with the provisions of articles 76 and 77, which is not true
in the present case where the penalty applicable for parricide is composed only of
two indivisible penalties. On the other hand, article 63 of the same Code refers to
the application of indivisible penalties whether it be a single divisible penalty, or
two indivisible penalties like that of reclusión perpetua, to death. It is therefore
clear that article 63 is the one applicable in the present case.
Paragraph 2, rule 3 of said article 63 provides that when the commission of the
act is attended by some mitigating circumstance and there is no aggravating
circumstance, the lesser penalty shall be applied. Interpreting a similar legal
provision the Supreme Court in the case of United States vs. Guevara (10 Phil. 37),
involving the crime of parricide, in applying article 80, paragraph 2 (rule 3 of the
old Penal Code) which corresponds to article 63, paragraph 2 (rule 3 of the present
Revised Penal Code), thru Chief Justice Arellano said the following:
CRIMINAL LAW | PENALTIES
"And even though this court should take into consideration the presence of two
mitigating circumstances of a qualifying nature, which it can not afford to overlook,
without any aggravating one, the penalty could not be reduced to the next lower to
that imposed by law, because, according to a ruling of the court of Spain, article 80
above-mentioned does not contain a precept similar to that contained in Rule 5 of
article 81 (now Rule 5, art. 64 of the Rev. Penal Code). (Decision of September 30,
1879.)
"Yet, in view of the excessive penalty imposed, the strict application of which is
inevitable and which, under the law, must be sustained, this court now resorts to
the discretional power conferred by paragraph 2 of article 2 of the Penal Code; and
"Therefore, we affirm the judgment appealed from with costs, and hereby order
that a proper petition be filed with the executive
665
VOL. 87, NOVEMBER 29, 1950 665
People vs. Formigones
branch of the Government in order that the latter, if it be deemed proper in the
exercise of the prerogative vested in it by the sovereign power, may reduce the
penalty to that of the next lower."
Then, in the case of People vs. Castañeda (60 Phil. 604), another parricide case, the
Supreme Court in affirming the judgment of conviction sentencing defendant
to reclusión perpetua, said that notwithstanding the numerous mitigating
circumstances found to exist, inasmuch as the penalty for parricide as fixed by
article 246 of the Revised Penal Code is composed of two indivisible penalties,
namely, reclusión perpetua, to death, paragraph 3 of article 63 of the said Code
must be applied. The Court further observed:
"We are likewise convinced that appellant did not have that malice nor has
exhibited such moral turpitude as requires life imprisonment, and therefore under
the provisions of article 5 of the Revised Penal Code, we respectfully invite the
attention of the Chief Executive to the case with a view to executive clemency after
appellant has served an appreciable amount of confinement."
In conclusion, we find the appellant guilty of parricide and we hereby affirm the
judgment of the lower court with the modification that the appellant will be
credited with one-half of any preventive imprisonment he has undergone.
Appellant will pay costs.
Following the attitude adopted and the action taken by this same court in the
two cases above cited, and believing that the appellant is entitled to a lighter
penalty, this case should be brought to the attention of the Chief Executive who, in
his discretion may reduce the penalty to that next lower to reclusión perpetua to
death or otherwise apply executive clemency in the manner he sees fit.
Moran, C. J., Parás, Feria, Pablo, Bengzon, Tuason, Reyes, and Jugo,
JJ., concur.
PADILLA, J.:
I concur in the result.
Judgment modified.
P a g e 131 | 279
 VOL. 387, AUGUST 21, 2002 485
Poso vs. Mijares
A.M. No. RTJ-02-1693. August 21, 2002.*
(Formerly OCA IPI 01-1170-RTJ)
OSCAR M. POSO, complainant, vs. JUDGE JOSE H. MIJARES, RTC-Br. 21,
Laoang, Northern Samar and FLOR SERIO, OIC Clerk of Court, Office of
the Clerk of Court, respondents.
Courts; Judges; Administrative Complaints; Clearly, public interest in an
adept and honest judiciary dictates that notice of future harsher penalties should
not be followed by another forewarning of the same kind, ad infinitum, but by
discipline through appropriate penalties.—We find the investigation and report of
Justice Cruz to be well-taken, but the penalty he recommends appears to be
disproportionate to the gravity of the offenses. As has been painstakingly observed,
respondent Judge Mijares had been sternly warned in Dadap-Malinao v.
Mijares that repetition of his mistakes, more so aggravations thereof, would be
dealt with more severely. Apparently the warning did not work and hence we see
no reason in employing it again for purposes of this disciplinary case. Clearly,
public interest in an adept and honest judiciary dictates that notice of future
harsher penalties should not be followed by another forewarning of the same
kind, ad infinitum, but by discipline through appropriate penalties. This
understanding should leave no doubt that, unless completely ab-
_______________
*EN BANC.
486
486 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
solved of the charges, respondent Judge faces a grimmer sentence than the
four (4)-month suspension and warning recommended by Justice Cruz.
Same; Same; Judgments; The fact that complainant received a signed copy of
a court’s Resolution in the ordinary course of court proceedings only shows that the
same was the official and final determination of the pending motion for reduction
of penalty and that, quite obviously, a judge, in offering another as the supposedly
final version of the same Resolution, is vainly attempting to justify the subsequent
erroneous grant of probation to the same accused.—We are not convinced that the
two (2) copies of the 10 January 1996 Resolution penned by respondent Judge
consist of the draft and the final versions thereof. The fact that complainant
received a signed copy of the Resolution, Exh. “D,” in the ordinary course of court
proceedings only shows that Exh. “D” was the official and final determination of
the motion for reduction of penalty sought by the accused in Crim. Case No. 2477.
Quite obviously, in offering Exh. “6” as the supposedly final version of
the Resolution dated 10 January 1996, respondent Judge is vainly attempting to
justify the subsequent erroneous grant of probation to the same accused since the
penalty imposed under Exh. “D” absolutely disqualifies him from probation.
CRIMINAL LAW | PENALTIES
Exhibit “6” is clearly an afterthought meant by Judge Mijares to deceive this Court
into excusing him from his patently flawed decision to allow probation and to
practice fraud in the fair and accurate disposition of the instant administrative
case.
Same; Same; Same; Verily, an unrestricted glance into undeveloped and
tentative opinions of a judge, as he weighs the arguments of concerned parties,
dangerously opens avenues to pressure him to rule one way or the other and, falsely
or not, invites cynical attention to his shifts of opinions while judgment is being
purposely perfected as ostensible badges of partiality and impropriety.—The
ineptitude and incompetence of Judge Mijares and his sloven management of court
records are, to say the least, deplorable. As shown by complainant Poso’s possession
of Exh. “D,” the premature publication of a distinct version of the Resolution has
no doubt compromised the sanctity and confidentiality of the judgment process to
the detriment of every effort to promote trust and confidence in the decisions of
judges. Verily, an unrestricted glance into undeveloped and tentative opinions of a
judge, as he weighs the arguments of concerned parties, dangerously opens avenues
to pressure him to rule one way or the other and, falsely or not, invites cynical
attention to his shifts of opinions while judgment is being purposely perfected as
ostensible badges of partiality and impropriety. Consequently, while a judge may
have just stated an exploratory ruling in the case, it becomes difficult for him to
backtrack and
487
VOL. 387, AUGUST 21, 2002 487
Poso vs. Mijares
change his opinion in the final decision without losing his credibility and
never recovering it in the eyes of a distrustful litigant and the wary public.
Same; Same; Same; As administrators of courts, judges should adopt a fail-
safe system of confidential records management which is ever ready to fend off
unhampered scavenging of a judge’s ideas and assessments from the glare and gore
of publicity and pressure by interested parties.—As administrators of courts, judges
should adopt a fail-safe system of confidential records management which is ever
ready to fend off unhampered scavenging of a judge’s ideas and assessments from
the glare and gore of publicity and pressure by interested parties. Not least of all
this mechanism is essential to protect the independence of decision-making by
those tasked to exercise judicial power. In the present case, the indiscriminate
availability of even a draft resolution indicates no less than gross inexcusable
negligence on the part of respondent Judge and a violation of Rule 3.08 of the Code
of Judicial Conduct directing judges to perform administrative responsibilities
diligently and to maintain professional competence assiduously in court
management.
Same; Same; Same; Criminal Law; Mitigating Circumstances; Voluntary
Surrender; Intoxication; Evidence; It is elementary that voluntary surrender and
intoxication cannot be admitted without evidence of factual requisites.—It is
elementary that voluntary surrender and intoxication cannot be admitted without
evidence of factual requisites. For voluntary surrender to be appreciated, effort
must be made to present evidence showing the interest of the accused to surrender
P a g e 132 | 279
unconditionally to the authorities either because he acknowledges his guilt or
because he wishes to save them the trouble and expenses necessarily incurred in
his search and capture. In intoxication, it is necessary that the accused present
proof of having taken a quantity of alcoholic beverage prior to the commission of
the crime sufficient to produce the effect of obfuscating reason. At the same time,
he must prove that he is not a habitual drinker and that he did not take the
alcoholic drink purposely to reinforce his resolve to commit the crime.
Same; Same; Same; Admittedly, judges cannot be held to account for
erroneous judgments rendered in good faith but this defense has been all too
frequently cited to the point of staleness—in truth, good faith in situations of fallible
discretion inheres only within the parameters of tolerable judgment and does not
apply where the issues are so simple and the applicable legal principle evident and
basic as to be beyond permissible margins of error.—We need not belabor
jurisprudence to accommodate respondent Judge’s argument which in effect posits
that not every judicial error be-
488
488 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
speaks ignorance of the law and that, if committed in good faith, does not
warrant administrative sanctions. So we have ruled and acted consistently, for to
decide otherwise would be nothing short of harassing judges to take the fantastic
and impossible oath of rendering infallible judgments. However, in the present
case, the rule shielding honest errors of opinion from punishment does not apply.
Admittedly judges cannot be held to account for erroneous judgments rendered in
good faith but this defense has been all too frequently cited to the point of staleness.
In truth, good faith in situations of fallible discretion inheres only within the
parameters of tolerable judgment and does not apply where the issues are so simple
and the applicable legal principle evident and basic as to be beyond permissible
margins of error.
Same; Same; Same; Gross Ignorance of the Law; A judge owes it to himself
and his office to know by heart basic legal principles and to harness his legal know-
how correctly and justly—anything less than that is constitutive of the serious
charge of gross ignorance of the law, perhaps, grave misconduct.—In the case at
bar, Judge Mijares was faced with the plain task of comprehending mitigating
circumstances, a topic in freshman criminal law. For a judge of respondent Judge’s
stature and experience of twenty-three (23) years of service in the judiciary, to still
err thereon must quite obviously be ignorance of the law or even a subterfuge for
an unworthy and corrupt purpose. While it may be true that the handling public
prosecutor did not object to his appreciation of the mitigating circumstances,
respondent Judge was no less excused from his judicial duty to observe the law he
was bound to know and sworn to uphold. A judge owes it to himself and his office
to know by heart basic legal principles and to harness his legal know-how correctly
and justly. Anything less than that, as respondent Judge exhibited in Crim. Case
No. 2477, is constitutive of the serious charge of gross ignorance of the law, perhaps,
grave misconduct.
CRIMINAL LAW | PENALTIES
Same; Same; Same; Same; Indeterminate Sentence Law; Under the
Indeterminate Sentence Law, the court cannot put the minimum penalty in the same
period and the same degree as the maximum penalty, because the minimum penalty
“shall be within the range of the penalty next lower to that prescribed by the Code
for the offense.”—The Resolution speaks for its own monstrosity: “two (2) years, four
(4) months and one (1) day of prision correccional as minimum to six (6) years of
prision correccional as maximum.” Evidently, this penalty upon which the accused
applied for and was granted probation is contrary to the mandate of
the Indeterminate Sentence Law. If only to illustrate the rudimentary character of
this principle and its obvious misapplication, we quote from a freshman criminal
law
489
VOL. 387, AUGUST 21, 2002 489
Poso vs. Mijares
textbook—If the offense is punished by the Revised Penal Code, the court
shall sentence the accused to an indeterminate penalty the maximum term of
which shall be that which, in view of the attending circumstances, could be properly
imposed under the rules of the Revised Penal Code, and the minimum term of
which shall be within the range of the penalty next lower to that prescribed by the
Code for the offense (Sec. 1, Act No. 4103 as amended by Act No. 4225). The court
cannot put the minimum penalty in the same period and the same degree as the
maximum penalty, because the minimum penalty “shall be within the range of the
penalty next lower to that prescribed by the Code for the offense” (italics supplied).
Same; Same; Same; Same; Same; In violating the Indeterminate Sentence
Law to grant a relief more favorable to the accused than what the accused himself
asked for and ostensibly in preparation for other legal maneuvers, i.e., probation to
assure his unfettered pass from detention, respondent Judge indubitably acted with
grave abuse of discretion and caused undue injury to the complainant and other
private offended parties.—The penalty fixed by respondent Judge does not conform
to the sentence which the accused sought in his motion for reduction of penalty
from four (4) years, two (2) months and one (1) day of prision correccional as
minimum to eight (8) years and one (1) day of prision mayor as maximum, to two
(2) years, four (4) months and one (1) day of prision correccional as minimum to six
(6) years and one (1) day of prision mayor as maximum, and not to a prison term
below this as was ordered by respondent Judge. While a judge as a rule is not
barred from granting relief other than or even more beneficial than the relief
prayed for, the disposition must be consistent with law and equity. This certainly
is not the situation here. In violating the Indeterminate Sentence Law to grant a
relief more favorable to the accused than what the accused himself asked for and
ostensibly in preparation for other legal maneuvers, i.e., probation to assure his
unfettered pass from detention, respondent Judge indubitably acted with grave
abuse of discretion and caused undue injury to complainant Poso and the other
private offended parties.
Criminal Law; Anti-Graft and Corrupt Practices Act (R.A. No.
3019); Violation of Sec. 3(3) of R.A. 3019; Elements.—The grievous exercise of
discretion by respondent Judge constitutes desecration of his sacred oath to do
P a g e 133 | 279
impartial justice to every one and an infringement of Sec. 3, par. (e), RA 3019 or
the Anti-Graft and Corrupt Practices Act, penalizing the criminal act of causing any
undue injury to any party including the government or giving any private party
any unwarranted benefits, advantage or preference. His manifest partiality in
granting the precipitate discharge of the accused from jail is notoriously
remarkable. No doubt the elements
490
490 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
of the offense are present in the instant case: (1) the respondent is a public
officer or a private person charged in conspiracy with the former; (2) the public
officer committed the prohibited acts in the performance of his official duties or in
relation to his or her public positions; (3) he caused undue injury to any party,
whether the government or a private party; and, (4) the public officer acted with
manifest partiality, evident bad faith, or gross inexcusable negligence.
Same; Probation; The statutory sequence of actions, i.e., order to conduct case
study prior to action on application for release on recognizance, was prescribed
precisely to underscore the interim character of the provisional liberty envisioned
under the Probation Law—the temporary liberty of an applicant for probation is
effective no longer than the period for awaiting the submission of the investigation
report and the resolution of the petition; A judge, by allowing the temporary liberty
of the accused even before the order to submit the case study and report,
unceremoniously extend the pro tem discharge of the accused to the detriment of the
prosecution and the private complainants.—On 11 January 1996, with undue and
irresponsible haste, respondent Judge allowed the accused in Crim. Case No. 2477
the privilege of temporary liberty under the recognizance of respondent Flor Serio
even before he could act on the application for probation and without the benefit of
notice and hearing for both the prosecution and the private complainants. His
unwarranted eagerness to free the accused from jail is even more manifest from
the fact that the application for probation was filed also on the same day that he
directed the release of the accused on recognizance. Under the Probation Law,
i.e., P.D. 968 as amended by P.D. 2990, respondent Judge could have authorized
the temporary liberty of the accused only while “[p]ending submission of the
investigation report and the resolution of the petition.” This was evidently
contravened for it was only on 12 January 1996 that Judge Mijares instructed the
Probation Officer to initiate and conduct the necessary case study and investigation
on the application for probation. It must be stressed that the statutory sequence of
actions, i.e., order to conduct case study prior to action on application for release on
recognizance, was prescribed precisely to underscore the interim character of the
provisional liberty envisioned under the Probation Law. Stated differently, the
temporary liberty of an applicant for probation is effective no longer than the period
for awaiting the submission of the investigation report and the resolution of the
petition, which the law mandates as no more than sixty (60) days to finish the case
study and report and a maximum of fifteen (15) days from receipt of the report for
the trial judge to resolve the application for probation. By allowing the temporary
CRIMINAL LAW | PENALTIES
liberty of the accused even before the order to submit the case study and report,
respondent Judge unceremoniously extended
491
VOL. 387, AUGUST 21, 2002 491
Poso vs. Mijares
the pro tem discharge of the accused to the detriment of the prosecution and
the private complainants.
Same; Same; Probation is a mere privilege and discretionary upon the court,
to be exercised primarily for justice and public interest and merely incidentally for
the benefit of the accused.—It is apparent that respondent Judge ordered the
release of the accused even before he could assess that the latter was not
a “disqualified offender” under Sec. 9 of the Probation Law, i.e., “sentenced to serve
a maximum term of imprisonment of more than six years,” which he could have
otherwise done had he ordered the release only after he had instructed the
accomplishment of the case study. Putting the discharge of the accused on hold
would have allowed Judge Mijares more time to pass upon the request for
provisional liberty. In addition, the unsolicited fervor to release the accused
significantly deprived the prosecution and the private complainants of their right
to due process. Contrary to the argument of respondent Judge, the prosecution
along with the private complainants has every right to be heard on the application
of the accused for temporary liberty upon recognizance. To stress, probation is a
mere privilege and discretionary upon the court, to be exercised primarily for
justice and public interest and merely incidentally for the benefit of the accused.
Certainly, if respondent Judge’s discretion is to be exercised soundly, as he should
have done, he had no better witnesses to hear than the prosecution and the private
complainants who, having definitely greater stakes than others in the untimely
liberty of the accused, could have disproved the propriety of his provisional
discharge of the accused for being disadvantageous to society.
Same; Same; Due diligence on the part of a judge should have elicited the
indispensable information that Del Rosario v. Rosero, 211 Phil. 406 (1983), had
been superceded and that BP 76 had been modified in relevant parts—clearly,
respondent Judge wrongly granted probation to an ineligible applicant in a manner
embarrassing to his vocation as judge of a court of justice.—There is no merit in
respondent Judge’s view, citing Del Rosario v. Rosero and BP 76 amending
the Probation Law, that a conviction for six (6) years and one (1) day of prision
mayor did not have the effect of disqualifying the accused from probation. Due
diligence should have elicited the indispensable information that Del Rosario had
been superceded and that B.P. 76 had been modified in relevant parts. In Amandy
v. People, wherein the accused was sentenced to six (6) years and one (1) day, we
held that P.D. 1990 had amended B.P. 76 so as to disqualify offenders sentenced to
more than six (6) years as maximum term of imprisonment. Clearly, as the facts
demonstrate, respondent Judge wrongly granted
492
492 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
P a g e 134 | 279
 probation to an ineligible applicant in a manner embarrassing to his vocation
as judge of a court of justice.
Courts; Judges; Judgments; Administrative Complaints; A decision or order
may be pronounced “unjust” in the same administrative proceeding where a judge
is taken to task for promulgating an allegedly unjust judgment or order; Bad faith
in the sense of a dishonest purpose, not the error, bad judgment or negligence per se,
is the cause for liability as well as the ground for penalty.—We stress that the
instant proceeding is itself an appropriate process to assail the injustice caused by
respondent Judge’s orders and to penalize him for it. In De Vera v. Pelayo we said
that a decision or order may be pronounced “unjust” in the same administrative
proceeding where a judge is taken to task for promulgating an allegedly unjust
judgment or order. Particularly, to prove the transgression in the administrative
proceeding, it must be established that the respondent rendered judgment or
decision without basis in law and/or evidence and in a manner actuated by hatred,
envy, revenge, greed or some other similar motive. Stated otherwise, if in rendering
judgment the judge fully knew or could not but have known that the same is unjust
in the sense aforesaid then he must have acted maliciously. Bad faith in the sense
of a dishonest purpose, not the error, bad judgment or negligence per se, is the
cause for liability as well as the ground for penalty.
Same; Same; Same; Same; Probation; Clearly, the court cannot stop short of
annulling the tainted proceedings and in the process enshrine an appearance of
doing justice only by halves; A judgment rendered with grave abuse of discretion or
without due process does not exist in legal contemplation and cannot be considered
to have attained finality for the simple reason that a void judgment has no legality
from its inception; To be sure, it has been said that probation is not a sentence but
is in effect a suspended sentence or an interlocutory judgment, for which reason, it
cannot be argued that courts are barred from correcting manifest injustice in the
improvident and corrupt grant of probation.—We cannot stop short of annulling
the tainted proceedings in Crim. Case No. 2477 and in the process enshrine an
appearance of doing justice only by halves. Marred by what is obviously a
miscarriage of judicial ethics, the proceedings beginning with the issuance of the
controversial 10 January 1996 Resolution are patently void and therefore produce
no legal effects whatsoever. From the lowering of the penalty to qualify the accused
for probation, the authorization for temporary liberty on recognizance, and finally
the grant of probation, the orders of respondent Judge arising from these
proceedings do not compel respectability and finality to constitute res judicata or
even double jeopardy. A judgment rendered with grave abuse of discretion or
without due
493
VOL. 387, AUGUST 21, 2002 493
Poso vs. Mijares
process does not exist in legal contemplation and cannot be considered to have
attained finality for the simple reason that a void judgment has no legality from its
inception. It may be attacked directly or collaterally and set aside as in the instant
case. To be sure, it has been said that probation is not a sentence but is in effect a
suspended sentence or an interlocutory judgment, for which reason, it cannot be
CRIMINAL LAW | PENALTIES
argued that courts are barred from correcting manifest injustice in the improvident
and corrupt grant of probation. At any rate, and without tinge of doubt, bare
technical adherence to the letter of the law and jurisprudence should not excuse
our obligation in settings attended by unusual circumstances to rectify evident
iniquity.
Same; Same; Same; The general rule that the Supreme Court does not review
a trial court’s decision in an administrative proceeding is not controlling where, in
the considered opinion of the Court, the situation calls for the exercise of its equity
jurisdiction to the end that complete justice is rendered to all affected parties.—We
recognize the general rule that this Court does not review a trial court’s decision in
an administrative proceeding since its main concern therein is to determine the
ethical responsibilities of judicial conduct. Nonetheless, in the instant case, it is our
considered opinion that the salutary principle is not controlling. Under clear
considerations before us, the situation calls for the exercise of our equity
jurisdiction to the end that we render complete justice to all affected parties. As we
have said, “Equity as the complement of legal jurisdiction seeks to reach and do
complete justice where courts of law, through the inflexibility of their rules and
want of power to adapt their judgments to the special circumstances of cases, are
incompetent so to do. Equity regards the spirit of and not the letter, the intent and
not the form, the substance rather than the circumstance, as it is variously
expressed by different courts.” Indeed, a court of equity which has taken
jurisdiction and cognizance of a cause for any purpose will ordinarily retain
jurisdiction for all purposes and award relief so as to accomplish full justice
between the party litigants, prevent future litigation and make performance of the
court’s decree perfectly safe to those who may be compelled to obey it.
Same; Same; Same; Faith in the administration of justice exists only if every
party-litigant is assured that the occupants of the bench are rich in moral fiber and
strong in their grasp of legal principles.—Faith in the administration of justice
exists only if every party-litigant is assured that the occupants of the bench are
rich in moral fiber and strong in their grasp of legal principles. Unfortunately,
respondent Judge failed to exhibit these qualities in both his discharge of sworn
duties and his manner of defending himself before this Court in the instant
proceedings. The brazen
494
494 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
flaunting of our disciplining authority through the fraudulent imposition of
the doctored 10 January 1996 Resolution along with the persistent and deliberate
heedlessness of key precedents and elementary legal precepts is palpable from his
actions. Having been judge for twenty-three (23) years, he should have appreciated
by now that no position in government service exacts greater demand on honesty
and integrity upon the individual than a seat in the judiciary. He should have taken
this lesson to heart if not for the fact of his status as judge then for the consideration
that a previous administrative case had once been decided against him.
P a g e 135 | 279
ADMINISTRATIVE MATTER in the Supreme Court. Violation of Sec. 3, par. (e)
of RA 3019, Gross Ignorance of the Law.
The facts are stated in the opinion of the Court.
Diosdado C. Sebrio, Jr. for complainant.
Amancio C. Balicud for Judge J.H. Mijares.
Napoleon Uy Galit and Associates Law Offices for F. Selbijan Serio.
PER CURIAM:
THIS IS NOT THE FIRST TIME that respondent Judge Jose H. Mijares, RTC-Br.
21, Laoang, Northern Samar, is hailed to Court to defend his integrity and
competence. Previously, for dismissing a petition for mandamus even long after a
final executory judgment thereon had been rendered based on a compromise
agreement executed by the parties, and his open admission of negligence and lack
of care in attending to incidents brought before him for adjudication, this Court
found him guilty of gross ignorance of the law. We meted him a fine of P5,000.00
with stern warning that repetition of the same or similar infractions complained of
would be dealt with more severely.1 Obviously, by then, particularly after our stern
warning intended to be taken seriously and committed to both heart and memory,
he should have been more solicitous in his task to steer clear of blunders, especially
their repetitions, and to
_______________
1Dadap-Malinao v. Mijares, A.M. No. RTJ-99-1475, 12 December 2001, 372
SCRA 128.
495
VOL. 387, AUGUST 21, 2002 495
Poso vs. Mijares
satisfy claims in a manner which, although late in coming, he could have rightfully
and lawfully done.
Unfortunately, except for the inclusion of respondent Flor Serio, OIC Clerk of
Court, RTC, Northern Samar, the instant complaint for administrative sanctions
against Judge Mijares for allegedly railroading the criminal case against a self-
confessed killer and admitting him to probation, which unduly obviated the
accused’s otherwise definite date with prison, reflects the same incompetence
earlier established on his part. Worse, the complaint demonstrates his apparent
incorrigibility as exhibited by documents on record showing res ipsa loquitur, a
sinister pattern of bad faith to favor the accused therein with a mere slap on the
wrist and to foist fraud upon this Court. While the rules excuse honest errors of
discretion as acceptable professional hazards, a defense ardently raised by
respondent Judge, the series of his unbelievable mistakes in the application of basic
legal principles on probation and criminal penalties together with his clear attempt
CRIMINAL LAW | PENALTIES
at deception ought to be exposed, and punished, despite his pretensions of
uprightness and sincerity.
The instant administrative case stemmed from the proceedings in Crim. Case
No. 2477 for murder, “People v. Virgilio de Guia,” where the victim, a certain Lito
M. Galupo, was a relative of complainant Oscar M. Poso. On 6 February 1995 the
criminal case was raffled to RTC-Br. 21, Laoang, Northern Samar,2 presided over
by respondent Judge Jose H. Mijares in an acting capacity by detail from his
regular station at RTC-Br. 26, San Juan, Southern Leyte.3 On 16 October 1995 the
accused was arraigned and pleaded not guilty to the charge. Accordingly, the case
was set for pre-trial and trial on 10 November 1995 but the proceedings were reset
to 27 November 1995.4
On 27 November 1995, in the course of the pre-trial conference in Crim. Case
No. 2477,5 the accused withdrew his plea of not
_______________
Report and Recommendation dated 14 May 2002, p. 4.
2
TSN, 10 January 2002, p. 30.
3
4 Id., p. 41.
5 TSN, 10 January 2002, pp. 42-45; TSN, 12 December 2001, p. 31; Complaint-
Affidavit, pp. 2-3; Rollo, p. 29.
496
496 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
guilty6 and pleaded guilty to the lesser offense of homicide.7 This was done with the
open consent of handling Public Prosecutor Napoleon C. Lagrimas and the private
offended parties therein including complainant Oscar Poso.8 Parenthetically, it is
surprising for respondent Judge to testify that even before he assumed over RTC-
Br. 21 in an acting capacity in 1994, the Information in Crim. Case No. 2477 had
already been amended to homicide by crudely crossing out the original caption of
murder and writing the amended charge by hand when the same Information was
filed only in 1995 and other relevant proceedings therein took place not later than
the same year.9 On the same day and occasion of the pre-trial conference and
without receiving evidence of aggravating or mitigating circumstances, respondent
Judge promulgated the judgment or “Sentence,” finding the accused guilty of
homicide.10 Curiously, Judge Mijares made allowance for three (3) mitigating
circumstances, i.e., plea of guilty, voluntary surrender and intoxication, and
accordingly sentenced the accused to four (4) years, two (2) months and one (1) day
of prision correccional as minimum to eight (8) years and one (1) day of prision
mayor as maximum and ordered him to indemnify the heirs of the victim at
P40,000.00.11
Subsequent events in Crim. Case No. 2477 however complicated the otherwise
uneventful conviction of the accused. To begin with, there was dispute as to
whether the accused truly moved for reconsideration of the penalty imposed on him
by respondent Judge Mijares. Complainant averred that respondent Judge had
P a g e 136 | 279
acted upon an unsigned motion which the accused did not even file with RTC-Br.
21. To prove his point he offered a two (2)-page unsigned document entitled “Motion
for Reconsideration” bearing no date of receipt by RTC-Br. 21.12 On the other hand,
respondent Judge presented a different motion for reconsideration which was
stamped received by RTC-Br. 21 with due notice to Public Prosecutor Napo-
_______________
6 See Note 2.
7 Exhs. “B” and “3”.
8 Complaint-Affidavit, p. 2; Rollo, p. 29.
9 See Note 4.
10 See Note 7.
11 Ibid.
12 Exh. “C”.
497
VOL. 387, AUGUST 21, 2002 497
Poso vs. Mijares
leon C. Lagrimas together with the Branch Clerk of Court,13 as well as the trial
court’s notice of hearing of the motion duly addressed to and received by the Public
Prosecutor and the Public Attorney’s Office.14 Judge Mijares further asserted that
the motion was actually heard on 28 December 1995 with both the prosecution and
the defense in attendance. There is however no question that the prayer in the
motion for reconsideration, whether the copy held by complainant Poso or
respondent Judge’s record on file, was invariably for the reduction of the penalty
from four (4) years, two (2) months and one (1) day of prision correccional as
minimum to eight (8) years and one (1) clay of prision mayor as maximum, to
only two (2) years, four (4) months and one (1) day of prision correctional as
minimum to six (6) years and one (1) day of prision mayor as maximum, and not to
any penalty below this.
Judge Mijares granted the motion for reconsideration in a Resolution dated 10
January 1996. Unfortunately however two (2) versions of the same Resolution, one
being the alleged draft version, and the other, a final copy thereof, although both
were penned by respondent Judge, surfaced and found circulation but each
imposing different maximum terms of the indeterminate sentence. Complainant
submitted a copy of the Resolution, Exh. “D,” reducing the penalty from four (4)
years, two (2) months and one (1) day of prision correccional as minimum to eight
(8) years and one (1) day of prision mayor as maximum, to two (2) years, four (4)
months and one (1) day of prision correccional as minimum to six (6) years and one
(1) day of prision mayor as maximum.
In contrast, the Resolution dated 10 January 1996 proffered by respondent
Judge, Exh. “6,” for no apparent reason, deviated from the motion for
reconsideration, oddly pegged both the minimum and the maximum ranges of the
indeterminate sentence at prision correccional in violation of the Indeterminate
Sentence Law, and ludicrously decreased the penalty to only two (2) years, four (4)
CRIMINAL LAW | PENALTIES
months and one (1) day of prision correccional as minimum to six (6) years of prision
correccional as maximum. It is at once apparent from the two (2) resolutions that
respondent Judge erased the
_______________
13Exh. “4”.
14Exh. “5”.
498
498 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
words “and one (1) day of prision mayor” in the dispositive portion of complainant’s
copy thereof15 and replaced them with “of prision correccional” as appearing in
Judge Mijares’ version of Resolution dated 10 January 1996.16 Respondent Judge
admitted that complainant’s copy was actually only a draft of his Resolution dated
10 January 1996 which in its final form was allegedly the document in the judge’s
custody.17
On 11 January 1996, taking his cue from the reduced penalty in Crim. Case No.
2477 and on the very day that the accused filed his application for probation and
release on recognizance, even before respondent Judge could act upon the
application for probation, he ordered the provisional discharge of the accused from
detention upon the recognizance of OIC Clerk of Court Flor Serio without hearing
the prosecution or giving any opportunity for the private complainants to
object.18 It was only the next day, or on 12 January 1996, that Judge Mijares
ordered the Probation Officer to initiate and conclude the necessary case study and
investigation on the application for probation. On 3 July 1996, upon the favorable
recommendation of the Probation Officer, respondent Judge placed the accused on
probation without objection from Public Prosecutor Napoleon C. Lagrimas in a
hearing called for this purpose.19
On 1 February 2001 the Office of the Ombudsman referred to this Court
the Complaint-Affidavit of Oscar M. Poso concerning the turn of events in Crim.
Case No. 2477 and charging respondent Judge Mijares with Knowingly Rendering
an Unjust Judgment, Issuing Unjust Interlocutory Orders, Concealment of
Documents and Commission of Acts punishable under Sec. 3, pars. (e) and (f) of RA
3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices
Act, and respondent OIC Clerk of Court Flor Serio with conspiracy to commit the
foregoing acts and concealment of documents.
_______________
15 Exh. “D”.
16 Exh. “6”.
17 TSN, 10 January 2002, pp. 61, 66-69.
18 Order dated 11 January 1996; Exhs. “E”, “F” and “G.”
P a g e 137 | 279
 19TSN, 10 January 2002, pp. 72, 77-78; Exh. “9”.
499
VOL. 387, AUGUST 21, 2002 499
Poso vs. Mijares
Specifically, complainant alleged that respondent Judge unjustly and to the
prejudice of the People of the Philippines and the private complainants committed
the following acts in the course of the criminal case: (a) convicted the accused of
homicide, after he had pleaded guilty to this lesser offense, when the charge was
for murder of which he should have been convicted; (b) acted favorably on 10
January 1996 on an unsigned Motion for Reconsideration filed by the accused for
the reduction of the prison term imposed on him, i.e., from four (4) years, two (2)
months and one (1) day of prision correccional as minimum to eight (8) years and
one (1) day of prision mayor as maximum to two (2) years, four (4) months and one
(1) day of prision correccional as minimum to six (6) years and one (1) day of prision
mayor as maximum, without notice to the handling Public Prosecutor Napoleon C.
Lagrimas; (c) unjustly released the accused on 11 January 1996 on the recognizance
of OIC Clerk of Court, respondent Flor Serio, without notice and hearing; (d) gave
due course to the application of the accused for probation in his Order of 12 January
1996 without hearing and in violation of Sec. 9 of the Probation Law which provides
that the benefits of the law do not extend to those sentenced to serve a maximum
term of imprisonment of more than six (6) years; and, (e) barred the issuance of
certified copies of relevant documents in Crim. Case No. 2477 requested by
complainant for purposes of his appeal, in conspiracy with the OIC Clerk of Court
Flor Serio. Complainant contended that respondent Judge violated Sec. 3, pars. (e)
and (f), R.A. 3019, punishing the acts of causing any undue injury to any party
including the government or giving any private party any unwarranted benefits,
advantage or preference as well as neglecting or refusing, after due request and
without sufficient justification, to act within a reasonable time on any matter
pending for the purpose of discriminating against any interested party.
With respect to respondent Flor Serio, complainant alleged that the latter
unjustly refused, in violation of Sec. 3, par. (f), R.A. 3019, to furnish him with
certified copies of the following documents relative to Crim. Case No. 2477 which
were requested for purposes of perfecting an appeal, to wit: (a) Information; (b) Pre-
Trial Conference Order; (c) Sentence promulgated on 27 November 1995 finding the
accused guilty of homicide after he pleaded guilty to this lesser offense;
(d) Resolution dated 10 January 1996 acting on
500
500 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
accused’s Motion for Reconsideration praying for reduction of his penalty; and,
(e) Order dated 12 January 1996 acting upon the application for probation despite
the absence of notice and hearing and the appropriate penalty exceeding six (6)
years.
On 11 April 2001 respondent Judge filed his Comment denying the charges
against him, particularly, that he granted probation to one clearly disqualified
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under the Probation Law. As proof thereof, respondent attached to
his Comment the allegedly genuine copy of the accused’s Motion for
Reconsideration dated 12 December 199520 and the supposedly authentic copy of
his Resolution dated 10 January 199621 wherein he reduced the penalty imposed
upon the accused from four (4) years, two (2) months and one (1) day of prision
correccional as minimum to eight (8) years and one (1) day of prision mayor as
maximum, to only two (2) years, four (4) months and one (1) day of prision
correccional as minimum to six (6) years of prision correccional as maximum. He
disclaimed the due execution of complainant’s copy of Resolution dated 10 January
1996, and refuted the allegation of complainant that the penalty he imposed upon
the accused was six (6) years and one (1) day of prision mayor as maximum which
would have otherwise disqualified the accused from probation. Respondent Judge
also averred that the prosecution and the defense were duly notified of the hearing
of the motion for reconsideration and were actually present thereat before he issued
the assailed resolution.
In a Letter-Comment dated 6 April 2001 respondent Flor Serio denied that she
had refused to issue certified copies of the documents requested by complainant
Poso for the sole reason that as the OIC Clerk of Court of the RTC of Northern
Samar she had no custody of the requested documents which were allegedly still in
the possession of the Clerk of Court for Branch 21 where Crim. Case No. 2477 was
pending.
In a Reply-Affidavit dated 23 May 2001 complainant branded as falsified
respondent Judge’s copy of Resolution dated 10 January 1996; prayed that Judge
Mijares be preventively suspended pending resolution of this case to prevent
further falsification of the
_______________
20Annexes “1” and “1-A” of Comment; Exh. “4”.
21Annexes “3” and “3-A,” id.; Exh. “6”.
501
VOL. 387, AUGUST 21, 2002 501
Poso vs. Mijares
records in Crim. Case No. 2477; and, insisted that respondent Judge acted upon
the Motion for Reconsideration filed by the accused without notice to handling
Prosecutor Lagrimas, a fact allegedly admitted by the prosecutor himself in
his Counter-Affidavit22 filed with the Office of the Ombudsman, and that the
records in Crim. Case No. 2477 were in the custody of OIC Clerk of Court Flor Serio
at the time the request for certified true copies thereof was made.
On 22 August 2001, confronted with two (2) conflicting versions of the
pivotal Resolution dated 10 January 1996, and the apparent mishandling of Crim.
Case No. 2477, we referred the instant case to Associate Justice Edgardo P. Cruz
of the Court of Appeals for an exhaustive investigation, report and
recommendation. On 25 October 2001 Justice Cruz summoned the complainant and
P a g e 138 | 279
his adversaries, Judge Mijares and OIC Clerk of Court Serio, for pre-trial
conference. Evidence for the parties was received in several hearings held for this
purpose.23 Thereafter complainant Poso and respondent Judge submitted their
respective Memoranda while respondent Serio opted to file
a Manifestation adopting in toto the arguments and evidence of her co-respondent.
On 14 May 2002 Justice Cruz submitted to this Court his Report and
Recommendation of even date. His report called attention to the reprehensible
actuations of respondent Judge when he reduced the penalty to ridiculous terms so
as to qualify the accused for probation; hastily ordered the discharge of the accused
from jail on recognizance without the benefit of notice and hearing afforded the
prosecution and the aggrieved parties, and even before he could order the Probation
Officer to conduct the requisite post-sentence investigation on the accused in
violation of the Probation Law; illegally admitted the accused to probation despite
the appropriate maximum penalty for homicide exceeding six (6) years which he
should have been sentenced to serve; and, ignorantly awarded civil indemnity of
P40,000.00 to the heirs of the victim of homicide when the amount should have
been P50,000.00.
_______________
Annex “A” of Reply-Affidavit.
22
Hearings were conducted on 30 October 2001, 27 November 2001, 12
23
December 2001, 8 January 2002, and 10 January 2002.
502
502 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
Justice Cruz found him guilty of violating Sec. 3, par. (e), of RA 3019 or, at the very
least, gross ignorance of the law to the prejudice of the prosecution and the private
offended parties in Crim. Case No. 2477. He however recommended the dismissal
of the charges for Knowingly Rendering an Unjust Judgment and Issuing Unjust
Interlocutory Orders since the questioned judgment and orders had not been found
in appropriate proceedings to be unjust or unfair. Also recommended for dismissal
was the count for Concealment of Documents on the ground that there was no
factual basis for tasking Judge Mijares with custody of the requested documents.
For the same reason, the investigating Justice recommended the dismissal of the
complaint as against OIC Clerk of Court Flor Serio. The appropriate penalty for
the culpable acts of respondent Judge, according to Justice Cruz, was suspension
from office for four (4) months without pay with warning that repetition of the same
or similar offenses would be penalized more severely.
We find the investigation and report of Justice Cruz to be well-taken, but the
penalty he recommends appears to be disproportionate to the gravity of the
offenses. As has been painstakingly observed, respondent Judge Mijares had been
sternly warned in Dadap-Malinao v. Mijares24 that repetition of his mistakes, more
so aggravations thereof, would be dealt with more severely. Apparently the
CRIMINAL LAW | PENALTIES
warning did not work and hence we see no reason in employing it again for purposes
of this disciplinary case. Clearly, public interest in an adept and honest judiciary
dictates that notice of future harsher penalties should not be followed by another
forewarning of the same kind, ad infinitum, but by discipline through appropriate
penalties. This understanding should leave no doubt that, unless completely
absolved of the charges, respondent Judge faces a grimmer sentence than the four
(4)-month suspension and warning recommended by Justice Cruz.
First. We are not convinced that the two (2) copies of the 10 January
1996 Resolution penned by respondent Judge consist of the draft and the final
versions thereof. The fact that complainant received a signed copy of
the Resolution, Exh. “D,” in the ordinary course of court proceedings only shows
that Exh. “D” was the offi-
_______________
24See Note 1.
503
VOL. 387, AUGUST 21, 2002 503
Poso vs. Mijares
cial and final determination of the motion for reduction of penalty sought by the
accused in Crim. Case No. 2477. Quite obviously, in offering Exh. “6” as the
supposedly final version of the Resolution dated 10 January 1996, respondent
Judge is vainly attempting to justify the subsequent erroneous grant of probation
to the same accused since the penalty imposed under Exh. “D” absolutely
disqualifies him from probation. Exhibit “6” is clearly an afterthought meant by
Judge Mijares to deceive this Court into excusing him from his patently flawed
decision to allow probation and to practice fraud in the fair and accurate disposition
of the instant administrative case.
His lack of candor and outright dishonesty are not without recorded precedent.
In his previous administrative case, Dadap-Malinao v. Mijares,25 he already tried
to mislead this Court into believing that his assailed order therein actually
dismissed a mere motion and not the main petition itself, which would have been
irregular, by passing the blame upon his hapless typist for supposedly keying in
the word “petition” instead of “motion,” and by issuing another order two (2) years
later still claiming that he did not dismiss the petition in question. Significantly,
in our review of the record, we eventually found out that the object of his order was
indeed to dismiss the petition and not the supposedly insignificant motion, and that
his alleged honest error was in reality a cover up to escape the disciplinary
consequences of his foiled attempt to dismiss the petition in flagrant violation of
established precedents.
Second. Even if we are to believe as true the allegation of respondent Judge
that Exh. “D” was merely a draft of Exh. “6” and proceed from this theory, his
degenerate professional character would nonetheless be unmistakable. For,
whether by design or out of sheer negligence, his inefficiency allowed the circulation
P a g e 139 | 279
of a mere draft of his 10 January 1996 Resolution in Crim. Case No. 2477, as he
would himself admit, which pegged the maximum term of the indefinite sentence
to more than six (6) years, when it was his intention to lower further the penalty
imposed therein as he in fact did in the allegedly official copy of the 10 January
1996 Resolution.
_______________
25Ibid.
504
504 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
The ineptitude and incompetence of Judge Mijares and his sloven management of
court records are, to say the least, deplorable. As shown by complainant Poso’s
possession of Exh. “D,” the premature publication of a distinct version of
the Resolution has no doubt compromised the sanctity and confidentiality of the
judgment process to the detriment of every effort to promote trust and confidence
in the decisions of judges. Verily, an unrestricted glance into undeveloped and
tentative opinions of a judge, as he weighs the arguments of concerned parties,
dangerously opens avenues to pressure him to rule one way or the other and, falsely
or not, invites cynical attention to his shifts of opinions while judgment is being
purposely perfected as ostensible badges of partiality and impropriety.
Consequently, while a judge may have just stated an exploratory ruling in the case,
it becomes difficult for him to backtrack and change his opinion in the final decision
without losing his credibility and never recovering it in the eyes of a distrustful
litigant and the wary public.
As did happen in the instant case, the divergent penalties in the draft and final
10 January 1996 Resolutions caused complainant Poso to believe that he and his
relatives, who were the private offended parties in Crim. Case No. 2477, got the
raw end of the deal. Their suspicion was bolstered no end by the grant of probation
to the accused, an exercise of judicial discretion emanating precisely from the
questioned Resolution. The error of respondent Judge, more accurately his
misconduct, veritably flaunted Rule 3.07 of the Code of Judicial
Conduct prohibiting judges from making public comments on any pending or
impending case when he allowed the public, i.e., complainant Poso, access to a draft
version of his 10 January 1996 Resolution. Unfortunately his flip-flopping
dispositions ruined every opportunity to appear credible and to project an image of
probity.
As administrators of courts, judges should adopt a fail-safe system of
confidential records management which is ever ready to fend off unhampered
scavenging of a judge’s ideas and assessments from the glare and gore of publicity
and pressure by interested
505
VOL. 387, AUGUST 21, 2002 505
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Poso vs. Mijares
parties.26 Not least of all this mechanism is essential to protect the independence
of decision-making by those tasked to exercise judicial power. In the present case,
the indiscriminate availability of even a draft resolution indicates no less than
gross inexcusable negligence on the part of respondent Judge and a violation of
Rule 3.08 of the Code of Judicial Conduct directing judges to perform
administrative responsibilities diligently and to maintain professional competence
assiduously in court management.
Third. But contrary to the allegations of complainant Poso, respondent Judge
Mijares did not err when he convicted the accused in Crim. Case No. 2477 of
homicide and not of the original charge of murder. The conviction was the result of
plea bargaining whereby the accused pleaded guilty to the lesser offense of
homicide with the admitted consent of both handling Public Prosecutor Napoleon
C. Lagrimas and the private offended parties including herein complainant.
There was also no error in respondent Judge’s action to disregard in the
computation of the imposable penalty the aggravating circumstances of treachery
and evident premeditation alleged in the Information in Crim. Case No. 2477.
Simply because the accused pleaded guilty does not necessarily imply his wholesale
admission of the presence of aggravating circumstances. This is especially true in
the instant case where the plea of guilty to the lesser offense of homicide was
preceded by a plea of not guilty to murder, thus indicating the intention of the
accused to deny the existence of evident premeditation and treachery. 27 At any
rate, as we have held in People v. Latupan,28 qualifying and aggravating
circumstances, which are taken into consideration for the purpose of increasing the
degree of penalty to be imposed, must be proved with equal certainty as the
commission of the act charged and cannot be considered as being integrated with
the plea of guilty.
_______________
Tolentino v. Cabral, A.M. No. RTJ-00-1528, 28 March 2000, 329 SCRA 1.
26
See People v. De Lima, G.R. No. 77969, 22 June 1989, 174 SCRA 204.
27
28 G.R. Nos. 112453-56, 28 June 2001, 360 SCRA 60; People vs. Derilo, G.R. No.
117818, 18 April 1997, 271 SCRA 633; People v. Tampus, No. 1-44690, 28 March
1980, 96 SCRA 624.
506
506 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
Fourth. In his “Sentence,” despite the correct initial assessment made by
respondent Judge, he however egregiously credited the accused with three (3)
mitigating circumstances, i.e., plea of guilty, voluntary surrender and intoxication,
without receiving evidence to warrant the action.29 While respondent Judge could
have plausibly appreciated the plea of guilty of the accused as a mitigating
circumstance, since the guilty plea was entered and the sentence immediately
P a g e 140 | 279
promulgated without any prosecution evidence having been offered, 30 we cannot
say this of his treatment of the other mitigating circumstances which violates basic
legal principles.
It is elementary that voluntary surrender and intoxication cannot be admitted
without evidence of factual requisites.31 For voluntary surrender to be appreciated,
effort must be made to present evidence showing the interest of the accused to
surrender unconditionally to the authorities either because he acknowledges his
guilt or because he wishes to save them the trouble and expenses necessarily
incurred in his search and capture.32 In intoxication, it is necessary that the
accused present proof of having taken a quantity of alcoholic beverage prior to the
commission of the crime sufficient to produce the effect of obfuscating reason. 33 At
the same time, he must prove that he is not a habitual drinker and that he did not
take the alcoholic drink purposely to reinforce his resolve to commit the crime. 34
We need not belabor jurisprudence to accommodate respondent Judge’s
argument which in effect posits that not every judicial error bespeaks ignorance of
the law and that, if committed in good faith, does not warrant administrative
sanctions. So we have ruled and acted consistently, for to decide otherwise would
be nothing short of harassing judges to take the fantastic and impossible oath of
rendering infallible judgments.
_______________
29The indemnity of P40,000.00 awarded in Crim. Case No. 2477 may be
excused as exercise of respondent Judge’s permissible discretion.
30 People v. Intal, 101 Phil. 306 (1957).
31 People v. Kayanan, No. L-30355, 31 May 1978, 83 SCRA 437.
32 Id.; People v. Noble, 77 Phil. 104 (1946).
33 People v. Cortes, G.R. No. 137050, 11 July 2001, 361 SCRA 80.
34 Ibid.
507
VOL. 387, AUGUST 21, 2002 507
Poso vs. Mijares
However, in the present case, the rule shielding honest errors of opinion from
punishment does not apply. Admittedly judges cannot be held to account for
erroneous judgments rendered in good faith but this defense has been all too
frequently cited to the point of staleness. In truth, good faith in situations of fallible
discretion inheres only within the parameters of tolerable judgment and does not
apply where the issues are so simple and the applicable legal principle evident and
basic as to be beyond permissible margins of error.35
In the case at bar, Judge Mijares was faced with the plain task of
comprehending mitigating circumstances, a topic in freshman criminal law. For a
judge of respondent Judge’s stature and experience of twenty-three (23) years of
service in the judiciary, to still err thereon must quite obviously be ignorance of the
law or even a subterfuge for an unworthy and corrupt purpose. While it may be
true that the handling public prosecutor did not object to his appreciation of the
CRIMINAL LAW | PENALTIES
mitigating circumstances, respondent Judge was no less excused from his judicial
duty to observe the law he was bound to know and sworn to uphold. A judge owes
it to himself and his office to know by heart basic legal principles and to harness
his legal know-how correctly and justly. Anything less than that, as respondent
Judge exhibited in Crim. Case No. 2477, is constitutive of the serious charge of
gross ignorance of the law, perhaps, grave misconduct.
Fifth. While we do not give credence to complainant’s accusation that Judge
Mijares acted upon an unsigned motion for reconsideration and that he granted the
same without notice and hearing to the prosecution, for the documents on record
indubitably prove otherwise, we find several glaring irregularities in the rendition
of the 10 January 1996 Resolution. To begin with, there was confusion as to which
version of the Resolution, Exh. “6” or Exh. “D,” was authentic, a matter made worse
not only by the public’s improvident access to a draft version of the Resolution, if
respondent’s account were true, but also the deception foisted upon this Court in
the form of the devious Exh. “6.” Equally lamentable and incrimi-
_______________
35 Daracan v. Natividad, A.M. No. RTJ-99-1447, 27 September 2000, 341 SCRA
161.
508
508 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
nating is the penalty appearing in the allegedly official and final copy of the 10
January 1996 Resolution granting the motion for reduction of penalty in Crim.
Case No. 2477.
The Resolution speaks for its own monstrosity: “two (2) years, four (4) months
and one (1) day of prision correccional as minimum to six (6) years of prision
correccional as maximum.” Evidently, this penalty upon which the accused applied
for and was granted probation is contrary to the mandate of the Indeterminate
Sentence Law. If only to illustrate the rudimentary character of this principle and
its obvious misapplication, we quote from a freshman criminal law textbook—
If the offense is punished by the Revised Penal Code, the court shall sentence the
accused to an indeterminate penalty the maximum term of which shall be that
which, in view of the attending circumstances, could be properly imposed under the
rules of the Revised Penal Code, and the minimum term of which shall be within
the range of the penalty next lower to that prescribed by the Code for the offense
(Sec. 1, Act No. 4103 as amended by Act No. 4225). The court cannot put the
minimum penalty in the same period and the same degree as the maximum penalty,
because the minimum penalty “shall be within the range of the penalty next lower to
that prescribed by the Code for the offense” (italics supplied).36
Moreover, the penalty fixed by respondent Judge does not conform to the sentence
which the accused sought in his motion for reduction of penalty from four (4) years,
two (2) months and one (1) day of prision correccional as minimum to eight (8) years
and one (1) day of prision mayor as maximum, to two (2) years, four (4) months and
P a g e 141 | 279
one (1) day of prision correccional as minimum to six (6) years and one (1) day of
prision mayor as maximum, and not to a prison term below this as was ordered by
respondent Judge. While a judge as a rule is not barred from granting relief other
than or even more beneficial than the relief prayed for, the disposition must be
consistent with law and equity. This certainly is not the situation here. In violating
the Indeterminate Sentence Law to grant a relief more favorable to the accused
than what the accused himself asked for and ostensibly in preparation for other
legal maneuvers, i.e., probation to assure his unfettered pass from de-
_______________
36L.B. Reyes, The Revised Penal Code: Book One (1993), p. 774.
509
VOL. 387, AUGUST 21, 2002 509
Poso vs. Mijares
tention, respondent Judge indubitably acted with grave abuse of discretion and
caused undue injury to complainant Poso and the other private offended parties.
The grievous exercise of discretion by respondent Judge constitutes desecration
of his sacred oath to do impartial justice to every one and an infringement of Sec.
3, par. (e), RA 3019 or the Anti-Graft and Corrupt Practices Act, penalizing the
criminal act of causing any undue injury to any party including the government or
giving any private party any unwarranted benefits, advantage or preference. His
manifest partiality in granting the precipitate discharge of the accused from jail is
notoriously remarkable. No doubt the elements of the offense are present in the
instant case: (1) the respondent is a public officer or a private person charged in
conspiracy with the former; (2) the public officer committed the prohibited acts in
the performance of his official duties or in relation to his or her public positions; (3)
he caused undue injury to any party, whether the government or a private party;
and, (4) the public officer acted with manifest partiality, evident bad faith, or gross
inexcusable negligence.37
Sixth. On 11 January 1996, with undue and irresponsible haste, respondent
Judge allowed the accused in Crim. Case No. 2477 the privilege of temporary
liberty under the recognizance of respondent Flor Serio even before he could act on
the application for probation and without the benefit of notice and hearing for both
the prosecution and the private complainants. His unwarranted eagerness to free
the accused from jail is even more manifest from the fact that the application for
probation was filed also on the same day that he directed the release of the accused
on recognizance. Under the Probation Law, i.e., P.D. 968 as amended by P.D. 2990,
respondent Judge could have authorized the temporary liberty of the accused only
while “[p]ending submission of the investigation report and the resolution of the
petition.”38 This was evidently contravened for it was only on 12 January 1996 that
Judge Mijares instructed the
_______________
CRIMINAL LAW | PENALTIES
37Arroyo v. Alcantara, A.M. No. P-01-1518, 14 November 2001, 368 SCRA 567.
38Sec. 7.
510
510 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
Probation Officer to initiate and conduct the necessary case study and investigation
on the application for probation.
It must be stressed that the statutory sequence of actions, i.e., order to conduct
case study prior to action on application for release on recognizance, was prescribed
precisely to underscore the interim character of the provisional liberty envisioned
under the Probation Law. Stated differently, the temporary liberty of an applicant
for probation is effective no longer than the period for awaiting the submission of
the investigation report and the resolution of the petition, which the law mandates
as no more than sixty (60) days to finish the case study and report and a maximum
of fifteen (15) days from receipt of the report for the trial judge to resolve the
application for probation.39 By allowing the temporary liberty of the accused even
before the order to submit the case study and report, respondent Judge
unceremoniously extended the pro tem discharge of the accused to the detriment of
the prosecution and the private complainants.
Furthermore, it is apparent that respondent Judge ordered the release of the
accused even before he could assess that the latter was not a “disqualified
offender” under Sec. 9 of the Probation Law, i.e., “sentenced to serve a maximum
term of imprisonment of more than six years,” which he could have otherwise done
had he ordered the release only after he had instructed the accomplishment of the
case study. Putting the discharge of the accused on hold would have allowed Judge
Mijares more time to pass upon the request for provisional liberty. In addition, the
unsolicited fervor to release the accused significantly deprived the prosecution and
the private complainants of their right to due process. Contrary to the argument of
respondent Judge, the prosecution along with the private complainants has every
right to be heard on the application of the accused for temporary liberty upon
recognizance. To stress, probation is a mere privilege and discretionary upon the
court, to be exercised primarily for justice and public interest and merely
incidentally for the benefit of the accused.40 Certainly, if respondent Judge’s
discretion is to be exercised soundly, as he should
_______________
39Ibid.
40Bala v. Martinez, G.R. No. 67301, 29 January 1990, 181 SCRA 459.
511
VOL. 387, AUGUST 21, 2002 511
Poso vs. Mijares
P a g e 142 | 279
have done, he had no better witnesses to hear than the prosecution and the private
complainants who, having definitely greater stakes than others in the untimely
liberty of the accused, could have disproved the propriety of his provisional
discharge of the accused for being disadvantageous to society.
More than anything else, respondent Judge has shown either utter disregard
for or total ignorance of the basic provisions of the Probation Law. It need not be
underscored that one of his basic obligations is to understand the law fully and
uphold it conscientiously. When the law is sufficiently basic, a judge owes it to his
office to know and simply apply it for anything less is constitutive of gross ignorance
of the law and manifest partiality punishable under Sec. 3, par. (e), R.A. 3019.41
Seventh. Respondent Judge abused the mandate of his office when he granted
probation to the accused in Crim. Case No. 2477. Obviously, the accused was
a “disqualified offender” under Sec. 9 of the Probation Law, since under the
undisputed facts of the case the imposable maximum term of imprisonment upon
him is more than six (6) years.42 The penalty for homicide, the crime to which the
accused confessed guilt, is reclusion temporal.43 Even if respondent Judge were
correct in appreciating three (3) mitigating circumstances, i.e., plea of guilty,
voluntary surrender and intoxication, the imposable maximum prison term would
nonetheless be prision mayor which carries a period of incarceration ranging from
six (6) years and one (1) day to twelve (12) years.44
_______________
Creer v. Fabillar, A.M. No. MTJ-99-1218, 14 August 2000, 337 SCRA 632.
41
Sec. 9 reads in part: “The benefits of this Decree shall not be extended to
42
those x x x (a) sentenced to serve a maximum term of imprisonment of more than
six years.”
43 Art. 249, The Revised Penal Code.
44 Under Art. 64, par. 5, id., “[w]hen there are two or more mitigating
circumstances and no aggravating circumstances are present, the court shall
impose the penalty next lower to that prescribed by law, in the period that it may
deem applicable, according to the number and nature of such circumstances.”
512
512 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
There is no merit in respondent Judge’s view, citing Del Rosario v.
Rosero45 and B.P. 76 amending the Probation Law,46 that a conviction for six (6)
years and one (1) day of prision mayor did not have the effect of disqualifying the
accused from probation. Due diligence should have elicited the indispensable
information that Del Rosario had been superceded and that B.P. 76 had been
modified in relevant parts. In Amandy v. People,47 wherein the accused was
sentenced to six (6) years and one (1) day, we held that P.D. 1990 had amended B.P.
76 so as to disqualify offenders sentenced to more than six (6) years as maximum
term of imprisonment.48 Clearly, as the facts demonstrate, respondent Judge
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wrongly granted probation to an ineligible applicant in a manner embarrassing to
his vocation as judge of a court of justice.
Eighth. We agree with the findings of the Investigating Justice that no evidence
adequately proves the charge that OIC Clerk of Court Flor Serio conspired with
respondent Judge to cause any undue injury to complainant and the other private
offended parties in Crim. Case No. 2477 or to give the accused therein the
unwarranted benefit of probation, it being clear from the evidence that only Judge
Mijares perpetrated the act. Neither did they refuse to issue certified true copies of
relevant documents in Crim. Case No. 2477 since it was established that the
custody of the requested documents was not with respondents so that they could
not have refused the request. Something more had to be presented than
complainant’s loose statements. However, we do not agree with the other
conclusion in the report that the offense of Knowingly Rendering an Unjust
Judgment or Issuing Unjust Interlocutory Orders
_______________
45 211 Phil. 406 (1983).
46 In 1980, B.P. 76 amended Sec. 9 of P.D. 968 by stating that the benefits of
the Decree shall not be extended to those “sentenced to serve a maximum term of
imprisonment of more than six years and one day.”
47 G.R. No. 76258, 23 May 1988, 161 SCRA 436; see Palo v. Militante, G.R. No.
76100, 18 April 1990, 184 SCRA 395.
48 Thus we said: “Subsequently, in 1985 then President Marcos promulgated
P.D. 1990 which amended BP 76 and returned to the earlier formulation in PD 968.
The latest decree on the matter excludes from the benefits of the Probation Law
any applicant who has been ‘sentenced to serve a maximum term of imprisonment
of more than six years.’ ”
513
VOL. 387, AUGUST 21, 2002 513
Poso vs. Mijares
has not been established since, according to Justice Cruz, the basic fact of injustice
must still be determined a priori by a competent court in an appropriate
proceeding, thus implying that the present administrative case is not suited for this
purpose.
We stress that the instant proceeding is itself an appropriate process to assail
the injustice caused by respondent Judge’s orders and to penalize him for it. In De
Vera v. Pelayo49 we said that a decision or order may be pronounced “unjust” in the
same administrative proceeding where a judge is taken to task for promulgating
an allegedly unjust judgment or order. Particularly, to prove the transgression in
the administrative proceeding, it must be established that the respondent rendered
judgment or decision without basis in law and/or evidence and in a manner
actuated by hatred, envy, revenge, greed or some other similar motive. 50 Stated
otherwise, if in rendering judgment the judge fully knew or could not but have
known that the same is unjust in the sense aforesaid then he must have acted
P a g e 143 | 279
maliciously. Bad faith in the sense of a dishonest purpose, not the error, bad
judgment or negligence per se, is the cause for liability as well as the ground for
penalty.
It is crystal clear that the assailed orders of respondent Judge are contrary to
law and are motivated by premeditated efforts to cause injustice. To recall, by his
own admission, he lowered the penalty imposed upon the accused in Crim. Case
No. 2477 to absurd limits and later authorized his pass from jail, first provisionally
then permanently, to the prejudice of the prosecution and the private offended
parties. Downgrading the penalty to a range lower than the prison term prescribed
by law enabled the accused to elude incarceration and apply for probation as he in
fact did. In so deciding, respondent Judge trifled with express provisions of our
penal laws. Not only did he display gross ignorance of the law, he also capriciously
tinkered with established legal precepts.
The protestations of respondent Judge that the error committed can only be an
honest error of judgment precluding administrative sanction are errant and
insipid. In the first place, he ought to have
_______________
49 G.R. No. 137354, 6 July 2000, 335 SCRA 281; In Re Joaquin T.
Borromeo, A.M. No. 93-7-696-0, 21 February 1995, 241 SCRA 405.
50 See Note 35.
514
514 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
known that his authority to fix penalties in accordance with his actual findings is
circumscribed by law. More than that, a visible thread of partiality for the accused
runs through the entire proceedings, particularly during the last stages. Truly, the
severity of the divergence between his hurried, although calculated, actions and
the indubitable principles as well as precedents governing criminal penalties
suggests no other conclusion than that he deliberately wanted to set the accused
free regardless of the dictates of conscience and the imperatives of law.
Res ipsa loquitor. The questioned actuations of respondent Judge and the
attendant circumstances brook no explanation consistent with good faith or lack of
malice and must be counted as constitutive of serious misconduct. On the face of
the assailed orders, there was an inexplicable series of grave errors bereft of any
redeeming feature and signifying an unjust decision. Indeed, when the inefficiency
springs from failure to consider so basic and elemental a rule, law or principle in
the discharge of duties, the judge is either insufferably incompetent and
undeserving of the position and title he holds, or is too vicious that the oversight or
omission was deliberately done in bad faith and in grave abuse of judicial authority.
This is the case here. Moreover, the absence of credible explanation from
respondent Judge to disprove or otherwise mitigate the strong inference of
malicious design unfortunately exacerbates the situation. When asked to explain,
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he was unable to give any rational justification for his actions even as his
explanations, off-tangent as they were, only reinforced the depths of the injustice
he had created. It is therefore our finding that he perpetrated the offense
of Knowingly Issuing Unjust Orders.
Ninth. It will not do, however, to dispose of the controversy by simply declaring
the administrative culpability of respondent Judge upon a matter literally dealing
with life and death. To maintain the status quo in Crim. Case No. 2477 would
surely leave hanging or in suspended animation the underlying issue of justice not
only in the instant proceeding but in the criminal action as well.
Clearly, we cannot stop short of annulling the tainted proceedings in Crim.
Case No. 2477 and in the process enshrine an appearance of doing justice only by
halves. Marred by what is obvi-
515
VOL. 387, AUGUST 21, 2002 515
Poso vs. Mijares
ously a miscarriage of judicial ethics, the proceedings beginning with the issuance
of the controversial 10 January 1996 Resolution are patently void and therefore
produce no legal effects whatsoever. From the lowering of the penalty to qualify the
accused for probation, the authorization for temporary liberty on recognizance, and
finally the grant of probation, the orders of respondent Judge arising from these
proceedings do not compel respectability and finality to constitute res judicata or
even double jeopardy.
A judgment rendered with grave abuse of discretion or without due process does
not exist in legal contemplation and cannot be considered to have attained finality
for the simple reason that a void judgment has no legality from its inception. 51 It
may be attacked directly or collaterally and set aside as in the instant case. To be
sure, it has been said that probation is not a sentence but is in effect a suspended
sentence or an interlocutory judgment,52 for which reason, it cannot be argued that
courts are barred from correcting manifest injustice in the improvident and corrupt
grant of probation. At any rate, and without tinge of doubt, bare technical
adherence to the letter of the law and jurisprudence should not excuse our
obligation in settings attended by unusual circumstances to rectify evident
iniquity.
We recognize the general rule that this Court does not review a trial court’s
decision in an administrative proceeding since its main concern therein is to
determine the ethical responsibilities of judicial conduct.53 Nonetheless, in the
instant case, it is our considered opinion that the salutary principle is not
controlling. Under clear considerations before us, the situation calls for the exercise
of our equity jurisdiction to the end that we render complete justice to all affected
parties. As we have said, “Equity as the complement of legal jurisdiction seeks to
reach and do complete justice where courts of law, through the inflexibility of their
rules and want of
_______________
P a g e 144 | 279
 51 People v. Velasco, G.R. No. 127444, 13 September 2000, 340 SCRA
207; People v. Magat, G.R. No. 130026, 31 May 2000, 332 SCRA 517; People v.
Court of Appeals, G.R. No. 128986, 21 June 1999, 308 SCRA 687.
52 See Note 40.
53 Belga v. Buban, A.M. No. RTJ-99-1512, 9 May 2000, 331 SCRA 531; Ng v.
Alfaro, A.M. No. P-93-959, 1 December 1994, 238 SCRA 486.
516
516 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
power to adapt their judgments to the special circumstances of cases, are
incompetent so to do. Equity regards the spirit of and not the letter, the intent and
not the form, the substance rather than the circumstance, as it is variously
expressed by different courts.”54 Indeed, a court of equity which has taken
jurisdiction and cognizance of a cause for any purpose will ordinarily retain
jurisdiction for all purposes and award relief so as to accomplish full justice
between the party litigants, prevent future litigation and make performance of the
court’s decree perfectly safe to those who may be compelled to obey it.55
In this regard, we instruct RTC-Br. 21, Laoang, Northern Samar, in Crim. Case
No. 2477 to call the case once again taking stock of our pronouncements in the
instant case. The trial court shall order the arrest of accused Virgilio de Guia to
restore the status quo ante prior to his release on recognizance. It shall forthwith
hear the accused and the prosecution solely for the purpose of establishing the
mitigating or aggravating circumstances, as the case may be. The trial court shall
then promulgate judgment paying particular attention to the proper application of
the Indeterminate Sentence Law and the plea of guilty of the accused to homicide.
From thereon, let justice take its proper course.
Faith in the administration of justice exists only if every party-litigant is
assured that the occupants of the bench are rich in moral fiber and strong in their
grasp of legal principles. Unfortunately, respondent Judge failed to exhibit these
qualities in both his discharge of sworn duties and his manner of defending himself
before this Court in the instant proceedings. The brazen flaunting of our
disciplining authority through the fraudulent imposition of the doctored 10
January 1996 Resolution along with the persistent and deliberate heedlessness of
key precedents and elementary legal precepts is palpable from his actions. Having
been judge for twenty-three (23) years, he should have appreciated by now that no
_______________
Agcaoili v. Government Service Insurance System, No. L-30056, 30 August
54
1988, 165 SCRA 1, quoting Air Manila, Inc. v. Court of Industrial Relations, 83
SCRA 579, 589 (1978).
55 Armamento v. Guerrero, No. L-34228, 21 February 1980, 96 SCRA 178,
citations omitted.
517
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VOL. 387, AUGUST 21, 2002 517
Poso vs. Mijares
position in government service exacts greater demand on honesty and integrity
upon the individual than a seat in the judiciary. He should have taken this lesson
to heart if not for the fact of his status as judge then for the consideration that a
previous administrative case had once been decided against him.
WHEREFORE, the Court finds respondent JUDGE JOSE H. MIJARES,
detailed to RTC-Br. 21, Laoang, Northern Samar, with permanent station at RTC-
Br. 26, San Juan, Southern Leyte, guilty of Gross Dishonesty for foisting upon this
Court a fraudulent copy of his 10 January 1996 Resolution, or otherwise, of Gross
Inexcusable Negligence for allowing a draft of his 10 January 1996 Resolution to
circulate freely and unhampered, in violation of the rule of strict confidentiality,
and of Gross Ignorance of the Law, Knowingly Issuing Unjust Orders and
Commission of Acts punishable under Sec. 3, par. (e) of RA 3019, otherwise known
as the Anti-Graft and Corrupt Practices Act, as amended, as a result of his actions
in Crim. Case No. 2477 entitled, “People v. Virgilio de Guia” for lowering the
penalty upon the accused to absurd limits in order that the latter may avail of, as
he was indeed granted, temporary liberty on recognizance and thereafter
probation.
Consequently, JUDGE JOSE H. MIJARES is ordered DISMISSED from the
service effective immediately with prejudice to re-employment in any branch or
instrumentality of the government including government-owned or controlled
corporations, with forfeiture of all his retirement benefits, except the value of his
earned leave credits which he shall be paid in full. He is further ordered to
IMMEDIATELY CEASE AND DESIST from discharging the functions of the office
from which he is removed. Moreover, RTC-Br. 21, Laoang, Northern Samar, in
connection with Crim. Case No. 2477, is directed to ORDER THE ARREST of
accused Virgilio de Guia in order to restore the status quo ante prior to his release
on recognizance. Forthwith the trial court shall CALL A HEARING for the sole
purpose of affording the accused and the prosecution an opportunity to present
evidence proving mitigating or aggravating circumstances as the case may be. The
trial court shall then REPROMULGATE JUDGMENT in Crim. Case No. 2477
paying particular attention to the proper application of the Indeterminate Sentence
Law and the plea of guilty of the accused to homicide. The Administrative
Complaint against respondent Judge for conceal-
518
518 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
ment of documents, and against respondent Flor Serio, OIC Clerk of Court, RTC,
Northern Samar, for concealment of documents and conspiracy to commit the
foregoing acts is DISMISSED for lack of merit.
SO ORDERED.
P a g e 145 | 279
 Bellosillo (Acting
C.J.), Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-
Santiago, Carpio, Austria-Martinez and Corona, JJ., concur.
Davide, Jr, (C.J.), On official leave.
Sandoval-Gutierrez, J., On leave.
Respondent Judge Jose H. Mijares dismissed from the service. Complaint for
concealment of documents dismissed.
Notes.—The judicial gavel should not be wielded by one who has an unsound
and distorted sense of justice and fairness. (Tabao vs. Espina, 257 SCRA
298 [1996])
That a judge has not been penalized for any other injudicious deeds and has no
other pending administrative complaints against him cannot be a counterbalance
for his gross misconduct over the years—a judge, after all, is expected to comport
himself as befits a man of law and a dispenser of justice and he cannot point to his
supposedly previous faultless record to offset the gravity of even a single but
enormous failing. (Abarquez vs. Rebosura, 285 SCRA 109 [1998])
——o0o——
148 SUPREME COURT REPORTS ANNOTATED
Baclayon vs. Mutia
No. L-59298. April 30, 1984*
FLORENTINA L. BACLAYON, petitioner, vs. HON. PACITO G. MUTIA, as
Presiding Judge of the Municipal Court of Plaridel, Misamis Occidental
and PEOPLE OF THE PHILIPPINES, respondents.
Criminal Law; Probation; Conditions which a court may impose on a
probationer classified into mandatory or general and special or discretionary. The
latter should be exercised realistically and purposively to rehabilitate the
probationer.—The conditions which trial courts may impose on a probationer may
be classified into general or mandatory and special or discretionary. The mandatory
conditions, enumerated in Section 10 of the Probation Law, require that the
probationer should (a) present himself to the probation officer designated to
undertake his supervision at such place as may be specified in the order within 72
hours from receipt of said order, and (b) report to the probation officer at least once
a month at such time and place as specified by said officer. Special or discretionary
conditions are those additional conditions, listed in the same Section
______________
*FIRST DIVISION.
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VOL. 129, APRIL 30, 1984 149
Baclayon vs. Mutia
10 of the Probation Law, which the courts may additionally impose on the
probationer towards his correction and rehabilitation outside of prison. The
CRIMINAL LAW | PENALTIES
enumeration, however, is not inclusive. Probation statutes are liberal in character
and enable courts to designate practically any term it chooses as long as the
probationer’s constitutional rights are not jeopardized. There are innumerable
conditions which may be relevant to the rehabilitation of the probationer when
viewed in their specific individual context. It should, however, be borne in mind
that the special or discretionary conditions of probation should be realistic,
purposive and geared to help the probationer develop into a law-abiding and self-
respecting individual. Conditions should be interpreted with flexibility in their
application and each case should be judged on its own merits—on the basis of the
problems, needs and capacity of the probationer. The very liberality of the
probation should not be made a tool by trial courts to stipulate instead unrealistic
terms.
Same; Same; Court may not impose as a condition for grant of probation that
probationer should not continue her teaching profession.—Petitioner is a teacher
and teaching is the only profession she knows and as such she possesses special
skills and qualifications. Thus, she was designated as District Guidance
Coordinator and always designated as District-in-Charge whenever the District
Supervisor is out of town. She is usually selected to represent her district in
seminars, meetings and conferences. She also excelled in her study of Child Study
and Development. It also appears that she is an outstanding member of the
Misamis Occidental Girl Scout Council, having served as Physical Education & Girl
Scout Field Advisor of the District, Adviser of the District Girl Scout Leaders
Association, Adviser of the District Federated Girl Scout Barangay Troop
Committee, acts as resource person in District and Division Level Girl Scout
encampments and re-elected Board Member of the Misamis Occidental Girl Scout
Council. To order the petitioner to refrain from teaching would deprive the students
and the school in general the benefits that may be derived from her training and
expertise. While it is true that probation is a mere privilege and its grant rests
solely upon the discretion of the court, this discretion is to be exercised primarily
for the benefit of organized society and only incidentally for the benefit of the
accused. Equal regard to the demands of justice and public interest must be
observed. In this case, teaching has been the lifetime and only calling and
profession of petitioner. The law requires that she devote herself to a lawful calling
and occupation during probation. Yet, to prohibit
150
150 SUPREME COURT REPORTS ANNOTATED
Baclayon vs. Mutia
her from engaging in teaching would practically prevent her from complying
with the terms of the probation.
Same; Accessory penalties are deemed suspended once probation application
is given due course.—Respondents contend that petitioner’s final conviction carries
with it the accessory penalties in addition to the principal penalty of imprisonment;
and since petitioner was sentenced to arresto mayor in its maximum period to
prision correccional in its minimum period, she must likewise suffer the accessory
penalties of suspension from public office and from the right to follow a profession
or calling, and that of perpetual special disqualification from the right of suffrage.
P a g e 146 | 279
This cannot apply to petitioner, however, because she was granted probation. The
imposition of her sentence of imprisonment was thereby suspended and
necessarily, the imposition of the accessory penalties was likewise thereby
suspended.
Same; Judgments; Same.—An order placing defendant on “probation” is not
a “sentence” but is rather in effect a suspension of the imposition of sentence. It is
not a final judgment but is rather an “interlocutory judgment” in the nature of a
conditional order placing the convicted defendant under the supervision of the court
for his reformation, to be followed by a final judgment of discharge, if the conditions
of the probation are complied with, or by a final judgment of sentence if the
conditions are violated.
PETITION to review by certiorari the order of the Municipal Court of Plaridel,
Misamis Occidental. Mutia, J.
The facts are stated in the opinion of the Court.
Morlando J. Gonzaga for petitioner.
The Solicitor General for respondents.
TEEHANKEE, J.:
This is a petition to review by certiorari the order dated December 21, 1981 of
respondent Pacito G. Mutia,1 then Presiding Judge of the Municipal Court (now
Municipal Trial Court) of Plaridel, Misamis Occidental, which imposed as a
________________
1 He has since been appointed as and is now the incumbent City Fiscal of
Oroquieta City.
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VOL. 129, APRIL 30, 1984 151
Baclayon vs. Mutia
condition in granting probation to petitioner Florentina L. Baclayon that she
refrain from continuing with her teaching profession.
Petitioner, a school teacher, was convicted of the crime of Serious Oral
Defamation by the then Municipal Court of Plaridel, Misamis Occidental, then
presided by respondent Pacito G. Mutia for having quarrelled with and uttered
insulting and defamatory words against Remedios Estillore, principal of the
Plaridel Central School. Her conviction was affirmed by the Court of Appeals (now
Intermediate Appellate Court) and the appellate court, taking into account the
aggravating circumstance of disregard of the respect due the offended party on
account of her rank and age and the fact that the crime was committed in the office
of the complainant in the public school building of Plaridel, Misamis Occidental
where public authorities are engaged in the discharge of their duties during office
hours, increased the penalty imposed by respondent judge and sentenced petitioner
CRIMINAL LAW | PENALTIES
to one year, 8 months, 21 days of arresto mayor in its maximum period to 2 years
and 4 months of prision correccional in its minimum period.
The sentence was promulgated on September 9, 1981. On the same date
petitioner applied for probation with respondent judge who referred the application
to a Probation Officer. The Post-Sentence Investigation Report favorably
recommended the granting of petitioner’s probation for a period of three (3) years.
On December 21, 1981, respondent Judge issued an order granting petitioner’s
probation, but modified the Probation Officer’s recommendation by increasing the
period of probation to five (5) years and by imposing the following conditions:
1. “(a)To present herself to the probation officer designated to undertake her
supervision at such place as may be specified in the order within seventy-
two hours from receipt of said order;
2. (b)To report to the Probation Office or any specified place designated by
the Probation Officer at least once a month in person;
3. (c)To reside at the premise approved by the Probation Officer
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152 SUPREME COURT REPORTS ANNOTATED
Baclayon vs. Mutia
1. and not change her residence without prior written approval;
2. (d)To permit the Probation Officer to visit her house and place of work or
an authorized Social Worker;
3. (e)To refrain from drinking intoxicating liquor to excess;
4. (f)To pay the cost;
5. (g)To satisfy any other condition related to the rehabilitation of the
defendant and not unduly restrictive of her liberty or incompatible with
her freedom of conscience; and
6. (h)To refrain from continuing her teaching profession.”
Petitioner’s plea for deletion of the last condition was rejected by respondent judge.
Hence, the petition at bar alleging grave abuse of discretion in the imposition of the
said condition that petitioner should “refrain from continuing her teaching
profession.” The petitioner submits that said condition is not only detrimental and
prejudicial to her rights but is also not in accordance with the purposes, objectives
and benefits of the probation law and prays that the said condition be deleted from
the order granting her probation. On petitioner’s motion, the Court issued a
temporary restraining order enjoining respondent judge from enforcing the said
questioned condition.
The Court finds merit in the petition.
The conditions which trial courts may impose on a probationer may be classified
into general or mandatory and special or discretionary. The mandatory conditions,
enumerated in Section 10 of the Probation Law, require that the probationer should
(a) present himself to the probation officer designated to undertake his supervision
P a g e 147 | 279
at such place as may be specified in the order within 72 hours from receipt of said
order, and (b) report to the probation officer at least once a month at such time and
place as specified by said officer. Special or discretionary conditions are those
additional conditions, listed in the same Section 10 of the Probation Law, which the
courts may additionally impose on the probationer towards his correction and
rehabilitation outside of prison. The enumeration, however, is not inclusive.
Probation statutes
153
VOL. 129, APRIL 30, 1984 153
Baclayon vs. Mutia
are liberal in character2 and enable courts to designate practically any term it
chooses as long as the probationer’s constitutional rights are not
jeopardized.3 There are innumerable conditions which may be relevant to the
rehabilitation of the probationer when viewed in their specific individual context.
It should, however, be borne in mind that the special or discretionary conditions of
probation should be realistic, purposive and geared to help the probationer develop
into a law-abiding and self-respecting individual. Conditions should be interpreted
with flexibility in their application and each case should be judged on its own
merits—on the basis of the problems, needs and capacity of the probationer. 4 The
very liberality of the probation should not be made a tool by trial courts to stipulate
instead unrealistic terms.
Petitioner is a teacher and teaching is the only profession she knows and as
such she possesses special skills and qualifications. Thus, she was designated as
District Guidance Coordinator and always designated as District-in-Charge
whenever the District Supervisor is out of town. She is usually selected to represent
her district in seminars, meetings and conferences. She also excelled in her study
of Child Study and Development. It also appears that she is an outstanding
member of the Misamis Occidental Girl Scout Council, having served as Physical
Education & Girl Scout Field Advisor of the District, Adviser of the District Girl
Scout Leaders Association, Adviser of the District Federated Girl Scout Barangay
Troop Committee, acts as resource person in District and Division Level Girl Scout
encampments and reelected Board Member of the Misamis Occidental Girl Scout
Council. To order the petitioner to refrain from teaching would deprive the students
and the school in general the benefits that may be derived from her training and
expertise. While it is true that probation is a mere privilege and its grant rests
solely
_______________
2 Balleta, Jr. vs. Judge Leviste, 92 SCRA 719; Santos To vs. Paño, 120 SCRA
8; Yusi vs. Morales, 121 SCRA 853.
3 Charles Newman, Sourcebook on Probation, Parole and Pardons, Third
Edition, p. 129.
4 Sergio F. Go., The Period and Conditions of Probation, p. 43, (1977 Probation
Seminar).
154
CRIMINAL LAW | PENALTIES
154 SUPREME COURT REPORTS ANNOTATED
Baclayon vs. Mutia
upon the discretion of the court, this discretion is to be exercised primarily for the
benefit of organized society and only incidentally for the benefit of the
accused.5 Equal regard to the demands of justice and public interest must be
observed.6 In this case, teaching has been the lifetime and only calling and
profession of petitioner. The law requires that she devote herself to a lawful calling
and occupation during probation. Yet, to prohibit her from engaging in teaching
would practically prevent her from complying with the terms of the probation.
Respondents contend that petitioner’s final conviction carries with it the
accessory penalties in addition to the principal penalty of imprisonment; and since
petitioner was sentenced to arresto mayor in its maximum period to prision
correccional in its minimum period, she must likewise suffer the accessory
penalties of suspension from public office and from the right to follow a profession
or calling, and that of perpetual special disqualification from the right of suffrage.
This cannot apply to petitioner, however, because she was granted probation. The
imposition of her sentence of imprisonment was thereby suspended and
necessarily, the imposition of the accessory penalties was likewise thereby
suspended.
An order placing defendant on “probation” is not a “sentence” but is rather in
effect a suspension of the imposition of sentence.7 It is not a final judgment but is
rather an “interlocutory judgment” in the nature of a conditional order placing the
convicted defendant under the supervision of the court for his reformation, to be
followed by a final judgment of discharge, if the conditions of the probation are
complied with, or by a final judgment of sentence if the conditions are violated.8
In view of all the foregoing, the Court grants the petition and hereby orders
that paragraph (h) of the questioned order
______________
Tolentino vs. Alconcel, 121 SCRA 92.
5
Ibid.
6
7 Commonwealth ex rel. Paige vs. Smith, 198 A. 812, 813, 815, 130 Pa. Super.
536.
8 Ibid.
155
VOL. 129, APRIL 30, 1984 155
Baclayon vs. Mutia
granting probation which requires that petitioner refrain from continuing with her
teaching profession be deleted. The temporary restraining order is hereby made
permanent. No costs.
Melencio-Herrera, Plana, Relova, Gutierrez, Jr. and De la Fuente,
JJ., concur.
Petition granted.
P a g e 148 | 279
 Notes.—A preliminary investigation is necessary to determine whether
probation would serve the ends of justice and the best interest of the public and the
applicant. (Cabatingan vs. Sandiganbayan, 102 SCRA 187).
Where the application for probation was denied below and on petition for review
in the Supreme Court, the petitioner was granted parole, his petition for grant of
probation becomes moot and academic. (Sasi vs. People, 108 SCRA 725).
The grant or denial of application for probation does not rest solely on offender’s
potentiality to reform, but also on the observance of demands of justice and public
interest. (Tolentino vs. Alconcel, 121 SCRA 92).
Withdrawal of application for probation by accused and his option instead to
pursue his appeal from judgment of conviction should be granted. Withdrawal or
waiver of appeal from conviction after an application for probation is not an
irrevocable matter. (Yusi vs. Morals, 121 SCRA 853).
Denial of probation to an offender for being allegedly not a penitent offender for
his protestation of innocence even after his conviction by the trial court and the
Court of Appeals is not justified. (To vs. Cruz-Paño, 120 SCRA 8).
——o0o——
G.R. No. 182748. December 13, 2011.*
ARNEL COLINARES, petitioner, vs. PEOPLE OF THE PHILIPPINES,
respondent.
Criminal Law; Self-defense; Evidence; Where the accused invokes self-defense,
he bears the burden of showing that he was legally justified in killing the victim or
inflicting injury to him.—When the accused invokes self-defense, he bears the
burden of showing that he was legally justified in killing the victim or inflicting
injury to him. The accused must establish the elements of self-defense by clear and
convincing evidence. When successful, the otherwise felonious deed would be
excused, mainly predicated on the lack of criminal intent of the accused.
Same; Same; Requisites of Self-defense; Unlawful aggression contemplates an
actual, sudden and unexpected attack or an imminent danger of such attack; A mere
threatening or intimidating attitude is not enough; the victim must attack the
accused with actual physical force or with a weapon.—In homicide, whether
consummated, frustrated, or attempted, self-defense requires (1) that the person
whom the offender killed or injured committed unlawful aggression; (2) that the
offender employed means that is reasonably necessary to prevent or repel the
unlawful aggression; and (3) that the person defending himself did not act with
sufficient provocation. If the victim did not commit unlawful aggression against the
accused, the latter has nothing to prevent or repel and the other two requisites of
self-defense would have no basis for being appreciated. Unlawful aggression
contemplates an actual, sudden, and unexpected attack or an imminent danger of
such attack. A mere
_______________
* EN BANC.
267
VOL. 662, DECEMBER 13, 2011 267
CRIMINAL LAW | PENALTIES
Colinares vs. People
threatening or intimidating attitude is not enough. The victim must attack
the accused with actual physical force or with a weapon.
Same; Attempted or Frustrated Homicide; The main element of attempted or
frustrated homicide is the accused’s intent to take his victim’s life; The intent to kill
is often inferred from, among other things, the means the offender used and the
nature, location and number of wounds he inflicted on his victims.—The main
element of attempted or frustrated homicide is the accused’s intent to take his
victim’s life. The prosecution has to prove this clearly and convincingly to exclude
every possible doubt regarding homicidal intent. And the intent to kill is often
inferred from, among other things, the means the offender used and the nature,
location, and number of wounds he inflicted on his victim.
Same; Same; When the accused intended to kill his victims as a shown by his
use of a deadly weapon and the wounds he inflicted but the victim did not die
because of timely medical assistance, the crime is frustrated murder or frustrated
homicide, if the victim’s wounds are not fatal, the crime is only attempted murder
or attempted homicide.—The Court is inclined, however, to hold Arnel guilty only
of attempted, not frustrated, homicide. In Palaganas v. People, 501 SCRA 533
(2006), we ruled that when the accused intended to kill his victim, as shown by his
use of a deadly weapon and the wounds he inflicted, but the victim did not die
because of timely medical assistance, the crime is frustrated murder or frustrated
homicide. If the victim’s wounds are not fatal, the crime is only attempted murder
or attempted homicide.
Same; The Probation Law; The Probation Law, said the Court in Francisco,
requires that an accused must not have appealed his conviction before he can avail
himself of probation.—The Probation Law, said the Court in Francisco, requires
that an accused must not have appealed his conviction before he can avail himself
of probation. This requirement “outlaws the element of speculation on the part of
the accused—to wager on the result of his appeal—that when his conviction is
finally affirmed on appeal, the moment of truth well-nigh at hand, and the service
of his sentence inevitable, he now applies for probation as an ‘escape hatch’ thus
rendering nugatory the appellate court’s affirmance of his conviction.”
Same; Same; The Court’s finding that Arnel was guilty not of frustrated
homicide but only of attempted homicide is an original conviction that for the first
time imposes on him a probationable penalty.—In a real sense, the Court’s finding
that Arnel was guilty, not of frustrated homicide, but only of attempted homicide,
is an original conviction that for the first time imposes
268
268 SUPREME COURT REPORTS ANNOTATED
Colinares vs. People
on him a probationable penalty. Had the RTC done him right from the start,
it would have found him guilty of the correct offense and imposed on him the right
penalty of two years and four months maximum. This would have afforded Arnel
the right to apply for probation.
PERALTA, J., Dissenting and Concurring Opinion:
P a g e 149 | 279
 Criminal Law; Probation Law; Probation is not a right granted to a convicted
offender; the Probation Law is not a penal law for it to be liberally construed to favor
the accused.—Probation is not a right granted to a convicted offender. Probation is
a special privilege granted by the State to a penitent qualified offender, who does
not possess the disqualifications under Section 9 of Presidential Decree (P.D.) No.
968, otherwise known as the Probation Law of 1976. Likewise, the Probation Law
is not a penal law for it to be liberally construed to favor the accused.
Same; Same; Wisdom Behind the Enactment of Our Own Probation Law.—In
this jurisdiction, the wisdom behind the enactment of our own Probation Law, as
outlined in the said law, reads: (a) promote the correction and rehabilitation of an
offender by providing him with individualized treatment; (b) provide an
opportunity for the reformation of a penitent offender which might be less probable
if he were to serve a prison sentence; and (c) prevent the commission of offenses.
Same; Same; Originally, P.D. No. 968 allowed the filing of an application for
probation even if an appeal had been perfected by the convicted offender under
Section 4; With the subsequent amendment of Section 4 of P.D. No. 968 by P.D. No.
1990, the application for the probation is no longer allowed if the accused has
perfected an appeal from the judgment of conviction.—Originally, P.D. No. 968
allowed the filing of an application for probation even if an appeal had been
perfected by the convicted offender under Section 4, x x x. Thereafter, the filing of
an application for probation pending appeal was still allowed when Section 4 of
P.D. No. 968 was amended by P.D. No. 1257. However, with the subsequent
amendment of Section 4 of P.D. No. 968 by P.D. No. 1990, the application for
probation is no longer allowed if the accused has perfected an appeal from the
judgment of conviction.
Same; Same; Section 4 of the Probation Law was amended to put a stop to the
practice of appealing from judgment of conviction even if the sentence is
probationable, for the purpose of securing an acquittal and applying for the
probation only if the accused fails in his bid.—In Sable v. People, 584 SCRA 619
(2009), the Court stated that “[Section 4 of] the Probation Law
269
VOL. 662, DECEMBER 13, 2011 269
Colinares vs. People
was amended to put a stop to the practice of appealing from judgments of
conviction even if the sentence is probationable, for the purpose of securing an
acquittal and applying for the probation only if the accused fails in his bid.” Thus,
probation should be availed of at the first opportunity by convicts who are willing
to be reformed and rehabilitated; who manifest spontaneity, contrition and
remorse.
Same; Same; Section 4 of the Probation Law provides that the application for
probation must be filed with the trial court within the 15-day period for perfecting
an appeal.—Section 4 of the Probation Law provides that the application for
probation must be filed with the trial court within the 15-day period for perfecting
an appeal. The need to file it within such period is intended to encourage offenders,
who are willing to be reformed and rehabilitated, to avail themselves of probation
at the first opportunity. If the application for probation is filed beyond the 15-day
CRIMINAL LAW | PENALTIES
period, then the judgment becomes final and executory and the lower court can no
longer act on the application for probation. On the other hand, if a notice of appeal
is perfected, the trial court that rendered the judgment of conviction is divested of
any jurisdiction to act on the case, except the execution of the judgment when it
has become final and executory.
Same; Same; Prevailing jurisprudence treats appeal and probation as
mutually exclusive remedies because the law is unmistakable about it.—In view of
the provision in Section 4 of the Probation Law that “no application for probation
shall be entertained or granted if the defendant has perfected an appeal from the
judgment of conviction,” prevailing jurisprudence treats appeal and probation as
mutually exclusive remedies because the law is unmistakable about it.
Same; Same; Recommended grounds where an accused may be allowed to
apply for probation even if he has filed a notice of appeal.—In this regard, an
accused may be allowed to apply for probation even if he has filed a notice of appeal,
provided that his appeal is limited to the following grounds: 1. When the appeal is
merely intended for the correction of the penalty imposed by the lower court, which
when corrected would entitle the accused to apply for probation; and 2. When the
appeal is merely intended to review the crime for which the accused was convicted
and that the accused should only be liable to the lesser offense which is necessarily
included in the crime for which he was originally convicted and the proper penalty
imposable is within the probationable period.270
270 SUPREME COURT REPORTS ANNOTATED
Colinares vs. People
Same; Same; Under the recommended grounds for appeal, the purpose of the
appeal is not to question the judgment of conviction but to question only the propriety
of the sentence particularly the penalty imposed as the accused intends to apply for
probation.—An appeal from the judgment of conviction involves a review of the
merits of the case and the determination of whether or not the accused is entitled
to acquittal. However, under the recommended grounds for appeal which were
enumerated earlier, the purpose of the appeal is not to question the judgment of
conviction, but to question only the propriety of the sentence, particularly the
penalty imposed, as the accused intends to apply for probation. If the appellate
court finds it proper to modify the sentence, and the penalty finally imposed by the
appellate court is within the probationable period, the accused should be allowed
to apply for probation after the case is remanded to the trial court for execution.
Same; Same; Instances where Probation should not be Granted to the
Accused.—On the other hand, probation should not be granted to the accused in the
following instances: 1. When the accused is convicted by the trial court of a
crime where the penalty imposed is within the probationable period or a fine, and
the accused files a notice of appeal; and 2. When the accused files a notice of appeal
which puts the merits of his conviction in issue, even if there is an alternative prayer
for the correction of the penalty imposed by the trial court or for a conviction to a
lesser crime, which is necessarily included in the crime in which he was convicted
where the penalty is within the probationable period.
VILLARAMA, JR., J., Concurring and Dissenting Opinion:
P a g e 150 | 279
 Criminal Law; Self-defense; The rule that if the accused appeals his conviction
solely to reduce the penalty, such penalty already probationable, and appellate court
grants his appeal he may still apply for probation, had already been abandoned.—
With the enactment of P.D. No. 968 (Probation Law of 1976), this Court held that
the rule that if the accused appeals his conviction solely to reduce the penalty, such
penalty already probationable, and the appellate court grants his appeal he may
still apply for probation, had already been abandoned. We explained that the
intention of the new law is to make appeal and probation
mutually exclusive remedies. Thus, where the penalty imposed by the trial court
is not probationable, and the appellate court modifies the penalty by reducing it to
within the probationable limit, the same prohibition should still apply and he is not
entitled to avail of probation.271
VOL. 662, DECEMBER 13, 2011 271
Colinares vs. People
Same; Same; The Court’s grant of relief to herein accused whose sentence was
reduced by this court to within the probationable limit, with a declaration that
accused may now apply for probation, would diminish the seriousness of that
privilege because in questioning his conviction accused never admitted this guilt; it
is of no moment that the trial court’s conviction of petitioner for frustrated homicide
is now corrected by this Court to only attempted homicide.—And in prohibiting the
trial court from entertaining an application for probation if the accused has
perfected his appeal, the State ensures that the accused takes seriously the
privilege or clemency extended to him, that at the very least he disavows criminal
tendencies. Consequently, this Court’s grant of relief to herein accused whose
sentence was reduced by this Court to within the probationable limit, with a
declaration that accused may now apply for probation, would diminish the
seriousness of that privilege because in questioning his conviction accused never
admitted his guilt. It is of no moment that the trial court’s conviction of petitioner
for frustrated homicide is now corrected by this Court to only attempted homicide.
Petitioner’s physical assault on the victim with intent to kill is unlawful or
criminal regardless of whether the stage of commission was frustrated or
attempted only. Allowing the petitioner the right to apply for probation under the
reduced penalty glosses over the fact that accused’s availment of appeal with such
expectation amounts to the same thing: speculation and opportunism on the part
of the accused in violation of the rule that appeal and probation are mutually
exclusive remedies.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for respondent.
ABAD, J.:
This case is about a) the need, when invoking self-defense, to prove all that it
takes; b) what distinguishes frustrated homicide from attempted homicide; and c)
when an accused who appeals may still apply for probation on remand of the case
to the trial court.272
272 SUPREME COURT REPORTS ANNOTATED
CRIMINAL LAW | PENALTIES
Colinares vs. People
The Facts and the Case
The public prosecutor of Camarines Sur charged the accused Arnel Colinares
(Arnel) with frustrated homicide before the Regional Trial Court (RTC) of San Jose,
Camarines Sur, in Criminal Case T-2213.1
Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the
evening on June 25, 2000, he and Jesus Paulite (Jesus) went out to buy cigarettes
at a nearby store. On their way, Jesus took a leak by the roadside with Rufino
waiting nearby. From nowhere, Arnel sneaked behind and struck Rufino twice on
the head with a huge stone, about 15 ½ inches in diameter. Rufino fell unconscious
as Jesus fled.
Ananias Jallores (Ananias) testified that he was walking home when he saw
Rufino lying by the roadside. Ananias tried to help but someone struck him with
something hard on the right temple, knocking him out. He later learned that Arnel
had hit him.
Paciano Alano (Paciano) testified that he saw the whole incident since he
happened to be smoking outside his house. He sought the help of a barangay
tanod and they brought Rufino to the hospital.
Dr. Albert Belleza issued a Medico-Legal Certificate2 showing that Rufino
suffered two lacerated wounds on the forehead, along the hairline area. The doctor
testified that these injuries were serious and potentially fatal but Rufino chose to
go home after initial treatment.
The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed
self-defense. He testified that he was on his way home that evening when he met
Rufino, Jesus, and Ananias who were all quite drunk. Arnel asked Rufino where
he supposed the Mayor of Tigaon was but, rather than reply, Rufino pushed him,
causing his fall. Jesus and Ananias then boxed Arnel several times on the back.
Rufino tried to stab Arnel but missed. The latter picked up a stone and, defending
himself, struck Rufino on the head with it. When Ananias saw this, he charged
towards Arnel and tried to stab him
_______________
1 Records, p. 25.
2 Id., at p. 2.
273
VOL. 662, DECEMBER 13, 2011 273
Colinares vs. People
with a gaff. Arnel was able to avoid the attack and hit Ananias with the same stone.
Arnel then fled and hid in his sister’s house. On September 4, 2000, he voluntarily
surrendered at the Tigaon Municipal Police Station.
Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding
party on the night of the incident. His three companions were all drunk. On his
way home, Diomedes saw the three engaged in heated argument with Arnel.
P a g e 151 | 279
 On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond
reasonable doubt of frustrated homicide and sentenced him to suffer imprisonment
from two years and four months of prision correccional, as minimum, to six years
and one day of prision mayor, as maximum. Since the maximum probationable
imprisonment under the law was only up to six years, Arnel did not qualify for
probation.
Arnel appealed to the Court of Appeals (CA), invoking self-defense and,
alternatively, seeking conviction for the lesser crime of attempted homicide with
the consequent reduction of the penalty imposed on him. The CA entirely affirmed
the RTC decision but deleted the award for lost income in the absence of evidence
to support it.3 Not satisfied, Arnel comes to this Court on petition for review.
In the course of its deliberation on the case, the Court required Arnel and the
Solicitor General to submit their respective positions on whether or not, assuming
Arnel committed only the lesser crime of attempted homicide with its imposable
penalty of imprisonment of four months of arresto mayor, as minimum, to two years
and four months of prision correccional, as maximum, he could still apply for
probation upon remand of the case to the trial court.
Both complied with Arnel taking the position that he should be entitled to apply
for probation in case the Court metes out a new penalty on him that makes his
offense probationable. The language and spirit of the probation law warrants such
a stand. The Solicitor General, on the other hand, argues that under the Probation
Law no
_______________
3 Rollo, pp. 109-128. Penned by Associate Justice Rebecca De Guia-Salvador,
with Associate Justices Magdangal M. De Leon and Ricardo R. Rosario concurring.
274
274 SUPREME COURT REPORTS ANNOTATED
Colinares vs. People
application for probation can be entertained once the accused has perfected his
appeal from the judgment of conviction.
The Issues Presented
The case essentially presents three issues:
1. Whether or not Arnel acted in self-defense when he struck Rufino on the
head with a stone;
2. Assuming he did not act in self-defense, whether or not Arnel is guilty of
frustrated homicide; and
3. Given a finding that Arnel is entitled to conviction for a lower offense and
a reduced probationable penalty, whether or not he may still apply for probation
on remand of the case to the trial court.
The Court’s Rulings
CRIMINAL LAW | PENALTIES
One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and
that he merely acted in self-defense when he hit Rufino back with a stone.
When the accused invokes self-defense, he bears the burden of showing that he
was legally justified in killing the victim or inflicting injury to him. The accused
must establish the elements of self-defense by clear and convincing evidence. When
successful, the otherwise felonious deed would be excused, mainly predicated on
the lack of criminal intent of the accused.4
In homicide, whether consummated, frustrated, or attempted, self-defense
requires (1) that the person whom the offender killed or injured committed
unlawful aggression; (2) that the offender employed means that is reasonably
necessary to prevent or repel the unlawful aggression; and (3) that the person
defending himself did not act with sufficient provocation.5
_______________
4 People v. Dagani, G.R. No. 153875, August 16, 2006, 499 SCRA 64, 73-74.
5 Oriente v. People, G.R. No. 155094, January 30, 2007, 513 SCRA 348, 359.
275
VOL. 662, DECEMBER 13, 2011 275
Colinares vs. People
If the victim did not commit unlawful aggression against the accused, the latter
has nothing to prevent or repel and the other two requisites of self-defense would
have no basis for being appreciated. Unlawful aggression contemplates an actual,
sudden, and unexpected attack or an imminent danger of such attack. A mere
threatening or intimidating attitude is not enough. The victim must attack the
accused with actual physical force or with a weapon.6
Here, the lower courts found that Arnel failed to prove the element of unlawful
aggression. He alone testified that Jesus and Ananias rained fist blows on him and
that Rufino and Ananias tried to stab him. No one corroborated Arnel’s testimony
that it was Rufino who started it. Arnel’s only other witness, Diomedes, merely
testified that he saw those involved having a heated argument in the middle of the
street. Arnel did not submit any medical certificate to prove his point that he
suffered injuries in the hands of Rufino and his companions.7
In contrast, the three witnesses—Jesus, Paciano, and Ananias—testified that
Arnel was the aggressor. Although their versions were mottled with
inconsistencies, these do not detract from their core story. The witnesses were one
in what Arnel did and when and how he did it. Compared to Arnel’s testimony, the
prosecution’s version is more believable and consistent with reality, hence
deserving credence.8
Two. But given that Arnel, the accused, was indeed the aggressor, would he
be liable for frustrated homicide when the wounds he inflicted on Rufino, his victim,
were not fatal and could not have resulted in death as in fact it did not?
The main element of attempted or frustrated homicide is the accused’s intent
to take his victim’s life. The prosecution has to prove this clearly and convincingly
to exclude every possible doubt regarding homicidal intent. 9 And the intent to kill
is often inferred from,
P a g e 152 | 279
 _______________
6 People v. Se, 469 Phil. 763, 770; 425 SCRA 725, 730 (2004).
7 Records, pp. 245-246 (TSN, May 5, 2004, pp. 28-29).
8 People v. Enfectana, 431 Phil. 64, 76; 381 SCRA 359, 368 (2002).
9 People v. Pagador, 409 Phil. 338, 351; 357 SCRA 299, 309 (2001).
276
276 SUPREME COURT REPORTS ANNOTATED
Colinares vs. People
among other things, the means the offender used and the nature, location, and
number of wounds he inflicted on his victim.10
Here, Arnel struck Rufino on the head with a huge stone. The blow was so
forceful that it knocked Rufino out. Considering the great size of his weapon, the
impact it produced, and the location of the wounds that Arnel inflicted on his
victim, the Court is convinced that he intended to kill him.
The Court is inclined, however, to hold Arnel guilty only of attempted, not
frustrated, homicide. In Palaganas v. People,11 we ruled that when the accused
intended to kill his victim, as shown by his use of a deadly weapon and the wounds
he inflicted, but the victim did not die because of timely medical assistance, the
crime is frustrated murder or frustrated homicide. If the victim’s wounds are not
fatal, the crime is only attempted murder or attempted homicide.Thus, the
prosecution must establish with certainty the nature, extent, depth, and severity
of the victim’s wounds. While Dr. Belleza testified that “head injuries are always
very serious,”12 he could not categorically say that Rufino’s wounds in this case
were “fatal.” Thus:
Q: Doctor, all the injuries in the head are fatal?
A: No, all traumatic injuries are potentially treated.
Q: But in the case of the victim when you treated him the wounds
actually are not fatal on that very day?
A: I could not say, with the treatment we did, prevent from becoming
fatal. But on that case the patient preferred to go home at that time.
Q: The findings also indicated in the medical certificate only refers to
the length of the wound not the depth of the wound?
A: When you say lacerated wound, the entire length of the layer of
scalp.
Q: So you could not find out any abrasion?
_______________
10 Rivera v. People, 515 Phil. 824, 832; 480 SCRA 188 (2006).
11 G.R. No. 165483, September 12, 2006, 501 SCRA 533, 555-556.
12 Records, p. 82 (TSN, June 17, 2002, p. 6).
277
VOL. 662, DECEMBER 13, 2011 277
Colinares vs. People
A: It is different laceration and abrasion so once the skin is broken up
the label of the frontal lo[b]e, we always call it lacerated wound, but
in that kind of wound, we did not measure the depth.13
CRIMINAL LAW | PENALTIES
Indeed, Rufino had two lacerations on his forehead but there was no indication
that his skull incurred fracture or that he bled internally as a result of the pounding
of his head. The wounds were not so deep, they merely required suturing, and were
estimated to heal in seven or eight days. Dr. Belleza further testified:
Q: So, in the medical certificate the wounds will not require surgery?
A: Yes, Madam.
Q: The injuries are slight?
A: 7 to 8 days long, what we are looking is not much, we give antibiotics
and antit[e]tanus – the problem the contusion that occurred in the
brain.
xxxx
Q: What medical intervention that you undertake?
A: We give antibiotics, Your Honor, antit[e]tanus and suturing the
wounds.
Q: For how many days did he stay in the hospital?
A: Head injury at least be observed within 24 hours, but some of them
would rather go home and then come back.
Q: So the patient did not stay 24 hours in the hospital?
A: No, Your Honor.
Q: Did he come back to you after 24 hours?
A: I am not sure when he came back for follow-up.14
Taken in its entirety, there is a dearth of medical evidence on record to support
the prosecution’s claim that Rufino would have died without timely medical
intervention. Thus, the Court finds Arnel
_______________
13 Id., at pp. 83-84 (id., at pp. 7-8).
14 Id., at pp. 84-85 (id., at pp. 8-9).
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liable only for attempted homicide and entitled to the mitigating circumstance of
voluntary surrender.
Three. Ordinarily, Arnel would no longer be entitled to apply for probation,
he having appealed from the judgment of the RTC convicting him for frustrated
homicide.
But, the Court finds Arnel guilty only of the lesser crime of attempted homicide
and holds that the maximum of the penalty imposed on him should be lowered to
imprisonment of four months of arresto mayor, as minimum, to two years and four
months of prision correccional, as maximum. With this new penalty, it would be
but fair to allow him the right to apply for probation upon remand of the case to the
RTC.
Some in the Court disagrees. They contend that probation is a mere privilege
granted by the state only to qualified convicted offenders. Section 4 of the probation
law (PD 968) provides: “That no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of
P a g e 153 | 279
conviction.”15 Since Arnel appealed his conviction for frustrated homicide, he
should be deemed permanently disqualified from applying for probation.
But, firstly, while it is true that probation is a mere privilege, the point is not
that Arnel has the right to such privilege; he certainly does not have. What he has
is the right to apply for that privilege.
_______________
15 Sec. 4, Presidential Decree 968 also known as the Probation Law of 1976,
provides: SEC. 4. Grant of Probation.—Subject to the provisions of this Decree, the
trial court may, after it shall have convicted and sentenced a defendant, and upon
application by said defendant within the period for perfecting an appeal, suspend
the execution of the sentence and place the defendant on probation for such period
and upon such terms and conditions as it may deem best; Provided, That no
application for probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with the
trial court. The filing of the application shall be deemed a waiver of the
right to appeal. (Emphasis supplied)
An order granting or denying probation shall not be appealable.
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The Court finds that his maximum jail term should only be 2 years and 4
months. If the Court allows him to apply for probation because of the lowered
penalty, it is still up to the trial judge to decide whether or not to grant him the
privilege of probation, taking into account the full circumstances of his case.
Secondly, it is true that under the probation law the accused who appeals “from
the judgment of conviction” is disqualified from availing himself of the benefits of
probation. But, as it happens, two judgments of conviction have been meted out to
Arnel: one, a conviction for frustrated homicide by the regional trial court, now set
aside; and, two, a conviction for attempted homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinion’s hard position, it will apply
the probation law on Arnel based on the trial court’s annulled judgment against
him. He will not be entitled to probation because of the severe penalty that such
judgment imposed on him. More, the Supreme Court’s judgment of conviction for a
lesser offense and a lighter penalty will also have to bend over to the trial court’s
judgment—even if this has been found in error. And, worse, Arnel will now also be
made to pay for the trial court’s erroneous judgment with the forfeiture of his right
to apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the
horse errs, the carabao gets the whip). Where is justice there?
The dissenting opinion also expresses apprehension that allowing Arnel to
apply for probation would dilute the ruling of this Court in Francisco v. Court of
Appeals16 that the probation law requires that an accused must not have appealed
CRIMINAL LAW | PENALTIES
his conviction before he can avail himself of probation. But there is a huge
difference between Francisco and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused
guilty of grave oral defamation and sentenced him to a prison term of one year and
one day to one year and eight months of prision correccional, a clearly
probationable penalty. Probation was his to ask! Still, he chose to appeal, seeking
an acquittal, hence clearly waiving his right to apply for probation. When the
acquittal
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16 313 Phil. 241, 255; 243 SCRA 384, 386 (1995).
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280 SUPREME COURT REPORTS ANNOTATED
Colinares vs. People
did not come, he wanted probation. The Court would not of course let him. It
served him right that he wanted to save his cake and eat it too. He certainly could
not have both appeal and probation.
The Probation Law, said the Court in Francisco, requires that an accused must
not have appealed his conviction before he can avail himself of probation. This
requirement “outlaws the element of speculation on the part of the accused—to
wager on the result of his appeal—that when his conviction is finally affirmed on
appeal, the moment of truth well-nigh at hand, and the service of his sentence
inevitable, he now applies for probation as an ‘escape hatch’ thus rendering
nugatory the appellate court’s affirmance of his conviction.”17
Here, however, Arnel did not appeal from a judgment that would have allowed
him to apply for probation. He did not have a choice between appeal and probation.
He was not in a position to say, “By taking this appeal, I choose not to apply for
probation.” The stiff penalty that the trial court imposed on him denied him that
choice. Thus, a ruling that would allow Arnel to now seek probation under this
Court’s greatly diminished penalty will not dilute the sound ruling in Francisco. It
remains that those who will appeal from judgments of conviction, when they have
the option to try for probation, forfeit their right to apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of correctness of the
penalty imposed on him. He claimed that the evidence at best warranted his
conviction only for attempted, not frustrated, homicide, which crime called for a
probationable penalty. In a way, therefore, Arnel sought from the beginning to
bring down the penalty to the level where the law would allow him to apply for
probation.
In a real sense, the Court’s finding that Arnel was guilty, not of frustrated
homicide, but only of attempted homicide, is an original conviction that for the first
time imposes on him a probationable penalty. Had the RTC done him right from
the start, it would have found him guilty of the correct offense and imposed on him
the right penalty of two years and four months maximum. This would have afforded
Arnel the right to apply for probation.
P a g e 154 | 279
 _______________
17 Id.
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The Probation Law never intended to deny an accused his right to probation
through no fault of his. The underlying philosophy of probation is one of liberality
towards the accused. Such philosophy is not served by a harsh and stringent
interpretation of the statutory provisions.18 As Justice Vicente V. Mendoza said in
his dissent in Francisco, the Probation Law must not be regarded as a mere
privilege to be given to the accused only where it clearly appears he comes within
its letter; to do so would be to disregard the teaching in many cases that the
Probation Law should be applied in favor of the accused not because it is a criminal
law but to achieve its beneficent purpose.19
One of those who dissent from this decision points out that allowing Arnel to
apply for probation after he appealed from the trial court’s judgment of conviction
would not be consistent with the provision of Section 2 that the probation law
should be interpreted to “provide an opportunity for the reformation of a penitent
offender.” An accused like Arnel who appeals from a judgment convicting him, it is
claimed, shows no penitence.
This may be true if the trial court meted out to Arnel a correct judgment of
conviction. Here, however, it convicted Arnel of the wrong crime, frustrated
homicide, that carried a penalty in excess of 6 years. How can the Court expect him
to feel penitent over a crime, which as the Court now finds, he did not commit? He
only committed attempted homicide with its maximum penalty of 2 years and 4
months.
Ironically, if the Court denies Arnel the right to apply for probation under the
reduced penalty, it would be sending him straight behind bars. It would be robbing
him of the chance to instead undergo reformation as a penitent offender, defeating
the very purpose of the probation law.
At any rate, what is clear is that, had the RTC done what was right and imposed
on Arnel the correct penalty of two years and four months maximum, he would
have had the right to apply for proba-
_______________
18 Yusi v. Honorable Judge Morales, 206 Phil. 734, 740; 121 SCRA 853, 858
(1983).
19 Francisco v. Court of Appeals, supra note 16, at p. 273; p. 405.
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282 SUPREME COURT REPORTS ANNOTATED
Colinares vs. People
tion. No one could say with certainty that he would have availed himself of the
right had the RTC done right by him. The idea may not even have crossed his mind
precisely since the penalty he got was not probationable.
CRIMINAL LAW | PENALTIES
The question in this case is ultimately one of fairness. Is it fair to deny Arnel
the right to apply for probation when the new penalty that the Court imposes on
him is, unlike the one erroneously imposed by the trial court, subject to probation?
WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the
Decision dated July 31, 2007 of the Court of Appeals in CA-G.R. CR 29639, FINDS
petitioner Arnel Colinares GUILTY beyond reasonable doubt of attempted
homicide, and SENTENCES him to suffer an indeterminate penalty from four
months of arresto mayor, as minimum, to two years and four months
of prision correccional, as maximum, and to pay Rufino P. Buena the amount of
P20,000.00 as moral damages, without prejudice to petitioner applying for
probation within 15 days from notice that the record of the case has been remanded
for execution to the Regional Trial Court of San Jose, Camarines Sur, in Criminal
Case T-2213.
SO ORDERED.
Corona (C.J.), Carpio, Velasco, Jr., Leonardo-De Castro, Del Castillo, Perez,
Mendoza and Reyes, JJ., concur.
Brion, J., I join J. Peralta’s Concurring and Dissenting Opinion.
Peralta, J., See Concurring & Dissenting opinion.
Bersamin, J., I join J. Peralta’s Concurring and Dissenting opinion.
Villarama, Jr., J., See Concurring and Dissenting Opinion.
Sereno, J., I join Justices Peralta and Villarama.
Perlas-Bernabe, J., I join J. Villarama.
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DISSENTING and CONCURRING OPINION
PERALTA, J.:
I concur with the disposition of the majority as to the conviction of the accused.
However, as to the question relating to the application of the Probation Law in
this case, I respectfully dissent to the majority opinion.
Probation is not a right granted to a convicted offender. Probation is a special
privilege granted by the State to a penitent qualified offender, 1 who does not
possess the disqualifications under Section 9 of Presidential Decree (P.D.) No.
968,2 otherwise known as the Probation Law of 1976. Likewise, the Probation Law
is not a penal law for it to be liberally construed to favor the accused.3
In the American law paradigm, probation is considered as an act of clemency
and grace, not a matter of right.4 It is a privilege granted by
_______________
1 Sable v. People, G.R. No. 177961, April 7, 2009, 584 SCRA 619, 625.
2 Sec. 9. Disqualified Offenders.—The benefits of this Decree shall not be
extended to those:
P a g e 155 | 279
 (a) Sentenced to serve a maximum term of imprisonment of more than
six years;
(b) Convicted of subversion or any crime against the national security
or the public order;
(c) Who have previously been convicted by final judgment of an offense
punished by imprisonment of not less than one month and one day and/or a
fine of not less than Two Hundred Pesos;
(d) Who have been once on probation under the provisions of this
Decree; and
(e) Who are already serving sentence at the time the substantive
provisions of this Decree became applicable pursuant to Section 33 hereof.
3 Pablo v. Castillo, G.R. No. 125108, August 3, 2000, 337 SCRA 176,
181; Llamado v. Court of Appeals, G.R. No. 84850, June 29, 1989, 174 SCRA 566,
577.
4 People v. Anderson, 50 Cal. 4th 19, 235 P.3d 11 (2010).
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284 SUPREME COURT REPORTS ANNOTATED
Colinares vs. People
the State, not a right to which a criminal defendant is entitled.5 In the recent case
of City of Aberdeen v. Regan,6 it was pronounced that:
“The granting of a deferred sentence and probation, following a plea or verdict
of guilty, is a rehabilitative measure and, as such, is not a matter of right but is a
matter of grace, privilege, or clemency granted to the deserving.”7
In this jurisdiction, the wisdom behind the enactment of our own Probation
Law, as outlined in the said law, reads:
(a) promote the correction and rehabilitation of an offender by providing him
with individualized treatment;
(b) provide an opportunity for the reformation of a penitent offender which
might be less probable if he were to serve a prison sentence; and
(c) prevent the commission of offenses.8
Originally, P.D. No. 9689 allowed the filing of an application for probation even
if an appeal had been perfected by the convicted offender under Section 4, thus:
“Section 4. Grant of Probation.—Subject to the provisions of this Decree,
the court may, after it shall have convicted and sentenced a defendant and
upon application at any time of said defendant, suspend the execution of said
sentence and place the defendant on probation for such period and upon such terms
and conditions as it may deem best.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with
the trial court, with notice to the appellate court if an appeal has been
taken from the sentence of conviction. The filing of the application shall
be deemed a waiver of the right to appeal, or the automatic withdrawal of
a pending appeal.
_______________
5 Dean v. State, 57 So.3d 169 (2010)
6 170 Wash. 2d 103, 239 P.3d 1102 (2010).
CRIMINAL LAW | PENALTIES
7 Emphasis supplied.
8 P.D. No. 968, Section 2.
9 Establishing a Probation System, Appropriating Funds Therefor and Other
Purposes, July 24, 1976.
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Colinares vs. People
An order granting or denying probation shall not be appealable.”10
Thereafter, the filing of an application for probation pending appeal was still
allowed when Section 4 of P.D. No. 968 was amended by P.D. No. 1257. 11
However, with the subsequent amendment of Section 4 of P.D. No. 968 by P.D.
No. 1990,12 the application for probation is no longer allowed if the accused has
perfected an appeal from the judgment of conviction. Section 4 of the Probation Law
now reads:
_______________
10 Emphases supplied.
11 Amending Certain Sections of Presidential Decree Numbered Nine Hundred
and Sixty-Eight, Otherwise Known as The Probation Law of 1976, December 1,
1977.
SECTION 1. Section 4 of Presidential Decree No. 968, otherwise known as
the Probation Law of 1976, is hereby amended to read as follows:
SEC. 4. Grant of Probation.—Subject to the provisions of this Decree, the
court may, after it shall have convicted and sentenced a defendant but before he
begins to serve his sentence and upon his application, suspend the execution of said
sentence and place the defendant on probation for such period and upon such terms
and conditions as it may deem best.
The prosecuting officer concerned shall be notified by the court of the filing of
the application for probation and he may submit his comment on such application
within ten days from receipt of the notification.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine with subsidiary imprisonment in case of insolvency. An
application for probation shall be filed with the trial court, with notice to
the appellate court if an appeal has been taken from the sentence of
conviction. The filing of the application shall be deemed a waiver of the
right to appeal, or the automatic withdrawal of a pending appeal. In the
latter case, however, if the application is filed on or after the date of the
judgment of the appellate court, said application shall be acted upon by
the trial court on the basis of the judgment of the appellate court.
An order granting or denying probation shall not be appealable. (Emphasis
supplied.)
12 Amending Presidential Decree No. 968, Otherwise Known as The Probation
Law of 1976, October 5, 1985.
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286 SUPREME COURT REPORTS ANNOTATED
Colinares vs. People
P a g e 156 | 279
 “Sec. 4. Grant of Probation.—Subject to the provisions of this Decree, the trial
court may, after it shall have convicted and sentenced a defendant and upon
application by said defendant within the period for perfecting an appeal, suspend
the execution of the sentence and place the defendant on probation for such period
and upon such terms and conditions as it may deem best; Provided, that no
application for probation shall be entertained or granted if the defendant
has perfected an appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with the
trial court. The filing of the application shall be deemed a waiver of the right to
appeal.”
An order granting or denying probation shall not be appealable.”13
The reason for the disallowance is stated in the preamble of P.D. No. 1990, thus:
WHEREAS, it has been the sad experience that persons who are convicted of
offenses and who may be entitled to probation still appeal the judgment of
conviction even up to the Supreme Court, only to pursue their application for
probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution, conviction and
appeal entails too much time and effort, not to mention the huge expenses of
litigation, on the part of the State;
WHEREAS, the time, effort and expenses of the Government in investigating
and prosecuting accused persons from the lower courts up to the Supreme Court,
are oftentimes rendered nugatory when, after the appellate Court finally affirms
the judgment of conviction, the defendant applies for and is granted probation;
WHEREAS, probation was not intended as an escape hatch and should not be
used to obstruct and delay the administration of justice, but should be availed of at
the first opportunity by offenders who are willing to be reformed and rehabilitated;
WHEREAS, it becomes imperative to remedy the problems abovementioned
confronting our probation system.14
_______________
13 Emphasis supplied.
14 Italics supplied.
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Colinares vs. People
In Sable v. People,15 the Court stated that “[Section 4 of] the Probation Law was
amended to put a stop to the practice of appealing from judgments of conviction
even if the sentence is probationable, for the purpose of securing an acquittal and
applying for the probation only if the accused fails in his bid.”16 Thus, probation
should be availed of at the first opportunity by convicts who are willing to be
reformed and rehabilitated; who manifest spontaneity, contrition and remorse.17
Verily, Section 4 of the Probation Law provides that the application for
probation must be filed with the trial court within the 15-day period for perfecting
an appeal. The need to file it within such period is intended to encourage offenders,
who are willing to be reformed and rehabilitated, to avail themselves of probation
at the first opportunity.18 If the application for probation is filed beyond the 15-day
CRIMINAL LAW | PENALTIES
period, then the judgment becomes final and executory and the lower court can no
longer act on the application for probation. On the other hand, if a notice of appeal
is perfected, the trial court that rendered the judgment of conviction is divested of
any jurisdiction to act on the case, except the execution of the judgment when it
has become final and executory.
In view of the provision in Section 4 of the Probation Law that “no application
for probation shall be entertained or granted if the defendant has perfected an
appeal from the judgment of conviction,” prevailing jurisprudence19 treats appeal
and probation as mutually exclusive remedies because the law is unmistakable
about it.20
However, it has been proposed that an appeal should not bar the accused from
applying for probation if the appeal is solely to reduce the penalty to within the
probationable limit, as this is equitable.
_______________
15 Supra note 1.
16 Id., at p. 627.
17 Id.
18 Id.
19 Sable v. People, supra note 1; Francisco v. Court of Appeals, G.R. No.
108747, April 6, 1995, 243 SCRA 384; Llamado v. Court of Appeals, G.R. No. 84850,
June 29, 1989, 174 SCRA 566.
20 Sable v. People, supra note 1, at p. 628.
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288 SUPREME COURT REPORTS ANNOTATED
Colinares vs. People
In this regard, an accused may be allowed to apply for probation even if he has
filed a notice of appeal, provided that his appeal is limited to the following grounds:
1. When the appeal is merely intended for the correction of the penalty
imposed by the lower court, which when corrected would entitle the accused to
apply for probation; and
2. When the appeal is merely intended to review the crime for which the
accused was convicted and that the accused should only be liable to the lesser
offense which is necessarily included in the crime for which he was originally
convicted and the proper penalty imposable is within the probationable period.
In both instances, the penalty imposed by the trial court for the crime
committed by the accused is more than six years; hence, the sentence disqualifies
the accused from applying for probation. Thus, the accused should be allowed to
file an appeal under the aforestated grounds to seek a review of the crime and/or
penalty imposed by the trial court. If, on appeal, the appellate court finds it proper
to modify the crime and/or the penalty imposed, and the penalty finally imposed is
within the probationable period, then the accused should be allowed to apply for
probation.
In addition, before an appeal is filed based on the grounds enumerated above,
the accused should first file a motion for reconsideration of the decision of the trial
P a g e 157 | 279
court anchored on the above-stated grounds and manifest his intent to apply for
probation if the motion is granted. The motion for reconsideration will give the trial
court an opportunity to review and rectify any errors in its judgment, while the
manifestation of the accused will immediately show that he is agreeable to the
judgment of conviction and does not intend to appeal from it, but he only seeks a
review of the crime and/or penalty imposed, so that in the event that the penalty
will be modified within the probationable limit, he will apply for probation.
What Section 4 of the Probation Law prohibits is an appeal from the judgment
of conviction, thus:
“Sec. 4. Grant of Probation.—Subject to the provisions of this Decree, the trial
court may, after it shall have convicted and sentenced a defendant and upon
application by said defendant
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Colinares vs. People
within the period for perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, that no application for probation
shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction.”21
An appeal from the judgment of conviction involves a review of the merits of
the case and the determination of whether or not the accused is entitled to
acquittal. However, under the recommended grounds for appeal which were
enumerated earlier, the purpose of the appeal is not to question the judgment of
conviction, but to question only the propriety of the sentence, particularly the
penalty imposed, as the accused intends to apply for probation. If the appellate
court finds it proper to modify the sentence, and the penalty finally imposed by the
appellate court is within the probationable period, the accused should be allowed
to apply for probation after the case is remanded to the trial court for execution.
It is believed that the recommended grounds for appeal do not contravene
Section 4 of the Probation Law, which expressly prohibits only an appeal from the
judgment of conviction. In such instances, the ultimate reason of the accused for
filing the appeal based on the aforestated grounds is to determine whether he may
avail of probation based on the review by the appellate court of the crime and/or
penalty imposed by the trial court. Allowing the aforestated grounds for appeal
would give a qualified convicted offender the opportunity to apply for probation if
his ground for appeal is found to be meritorious by the appellate court, thus, serving
the purpose of the Probation Law to promote the reformation of a penitent offender
outside of prison.
On the other hand, probation should not be granted to the accused in the
following instances:
1. When the accused is convicted by the trial court of a crime where the penalty
imposed is within the probationable period or a fine, and the accused files a notice
of appeal; and
CRIMINAL LAW | PENALTIES
_______________
21 Emphasis and underscoring supplied.
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290 SUPREME COURT REPORTS ANNOTATED
Colinares vs. People
2. When the accused files a notice of appeal which puts the merits of his
conviction in issue, even if there is an alternative prayer for the correction of the
penalty imposed by the trial court or for a conviction to a lesser crime, which is
necessarily included in the crime in which he was convicted where the penalty is
within the probationable period.
Both instances violate the spirit and letter of the law, as Section 4 of the
Probation Law prohibits granting an application for probation if an appeal from
the sentence of conviction has been perfected by the accused.
There is wisdom to the majority opinion, but the problem is that the law
expressly prohibits the filing of an application for probation beyond the period for
filing an appeal. When the meaning is clearly discernible from the language of the
statute, there is no room for construction or interpretation. 22 Thus, the remedy is
the amendment of Section 4 of P.D. No. 968, and not adaptation through judicial
interpretation.
CONCURRING AND DISSENTING OPINION
VILLARAMA, JR., J.:
I join the majority in ruling that petitioner should have been convicted only of
the lesser crime of attempted homicide and that the maximum of the indeterminate
prison term imposed on him should be lowered to four months of arresto mayor, as
minimum, to two years and four months of prision correccional, as maximum.
However, I disagree with their conclusion (by 8-7 vote) that on grounds of fairness,
the Court should now allow petitioner the right to apply for probation upon remand
of the case to the trial court.
I submit the following principles which should be controlling on the present
issue:
1. Probation being a mere privilege, this Court may not grant as relief
the recognition that accused-appellant may avail of it as a matter of right.
_______________
22 Pablo v. Castillo, supra note 3, at p. 181.
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Colinares vs. People
2. The probation law is not a penal statute and therefore the principle
of liberal interpretation is inapplicable.
With the enactment of P.D. No. 968 (Probation Law of 1976), this Court held
that the rule that if the accused appeals his conviction solely to reduce the penalty,
P a g e 158 | 279
such penalty already probationable, and the appellate court grants his appeal he
may still apply for probation, had already been abandoned. We explained that the
intention of the new law is to make appeal and probation
mutually exclusive remedies.1 Thus, where the penalty imposed by the trial court
is not probationable, and the appellate court modifies the penalty by reducing it to
within the probationable limit, the same prohibition should still apply and he is not
entitled to avail of probation.
In Francisco v. Court of Appeals,2 the Court categorically declared that
“[P]robation is not a right of an accused, but rather an act of grace of clemency or
immunity conferred by the court to a seemingly deserving defendant who thereby
escapes the extreme rigors of the penalty imposed by law for the offense of which
he stands convicted.” Subsequently, the Court noted that the suggestion
in Francisco that an appeal by the accused should not bar him from applying for
probation where such appeal was solely for the purpose of correcting a wrong
penalty—to reduce it to within the probationable range—may not be invoked by
the accused in situations when he at the same time puts in issue the merits of his
conviction.3 The ponencia found the factual milieu in Francisco not on fours with
this case. However, the accused here did not even raise the issue of his entitlement
to probation either as an alternative prayer to acquittal or as principal relief.
The majority reasoned that since the trial court imposed a (wrong) penalty
beyond the probationable range, thus depriving the accused of the option to apply
for probation when he appealed, the element of speculation that the law sought to
curb was not present. Noting that
_______________
1 Bernardo v. Balagot, G.R. No. 86561, November 10, 1992, 215 SCRA 526, 531.
2 G.R. No. 108747, April 6, 1995, 243 SCRA 384.
3 See Lagrosa v. People, G.R. No. 152044, July 3, 2003, 405 SCRA 357, 362.
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292 SUPREME COURT REPORTS ANNOTATED
Colinares vs. People
the accused in this case claimed that the evidence at best warranted his conviction
only for attempted, not frustrated homicide, the majority opined that said accused
had, in effect, sought to bring down the penalty as to allow him to apply for
probation.
I cannot concur with such proposition because it seeks to carve out an exception
not found in and contrary to the purpose of the probation law.
The pronouncement in Francisco that the discretion of the trial court in
granting probation is to be exercised primarily for the benefit of organized society,
and only incidentally for the benefit of the accused, underscored the paramount
objective in granting probation, which is the reformation of the probationer. This
notwithstanding, the majority suggests that remorse on the part of the accused is
not required, or least irrelevant in this case because “the Court cannot expect
petitioner to feel penitent over a crime, which the Court now finds, he did not
commit,” as he only committed attempted homicide.
CRIMINAL LAW | PENALTIES
It must be stressed that in foreclosing the right to appeal his conviction once
the accused files an application for probation, the State proceeds from the
reasonable assumption that the accused’s submission to rehabilitation and reform
is indicative of remorse. And in prohibiting the trial court from entertaining an
application for probation if the accused has perfected his appeal, the State ensures
that the accused takes seriously the privilege or clemency extended to him, that at
the very least he disavows criminal tendencies. Consequently, this Court’s grant of
relief to herein accused whose sentence was reduced by this Court to within the
probationable limit, with a declaration that accused may now apply for probation,
would diminish the seriousness of that privilege because in questioning his
conviction accused never admitted his guilt. It is of no moment that the trial court’s
conviction of petitioner for frustrated homicide is now corrected by this Court to
only attempted homicide. Petitioner’s physical assault on the victim with intent to
kill is unlawful or criminal regardless of whether the stage of commission
was frustrated or attempted only. Allowing the petitioner the right to apply for
probation under the reduced penalty glosses over the fact that accused’s availment
of appeal with such expectation amounts to the
293
VOL. 662, DECEMBER 13, 2011 293
Colinares vs. People
same thing: speculation and opportunism on the part of the accused in violation of
the rule that appeal and probation are mutually exclusive remedies.
The ponencia then declares that the question in this case is ultimately one of
fairness, considering the trial court’s erroneous conviction that deprived petitioner
of the right to apply for probation, from which he had no way of obtaining relief
except by appealing the judgment.
Such liberality accorded to the accused, for the reason that it was not his fault
that the trial court failed to impose the correct sentence, is misplaced.
It is settled that the Probation Law is not a penal statute. 4 In the matter of
interpretation of laws on probation, the Court has pronounced that “the policy of
liberality of probation statutes cannot prevail against the categorical provisions of
the law.”5 In applying Sec. 4 of P.D. No. 968 to this and similar cases, the Court
must carefully tread so as not to digress onto impermissible judicial legislation
whereby in the guise of interpretation, the law is modified or given a construction
which is repugnant to its terms. As oft-repeated, the remedy lies in the legislature
and not judicial fiat.
I therefore maintain my dissent to the pronouncement in
the ponencia recognizing the right of petitioner Arnel Colinares to apply for
probation.
Petition partially granted, judgment modified.
Note.—It is clear under Section 24 of Rep. Act No. 9165 that any person
convicted of drug trafficking cannot avail of the privilege of probation. (Padua vs.
People, 559 SCRA 519 [2008])
——o0o——
P a g e 159 | 279
 _______________ In the morning of Sunday, October 19, 1958, the lifeless body of William Co Chi
VOL. 6, OCTOBER 31, 1962 431 Chay was discovered by his brother, Jacinto Velasco Co, lying on an army cot inside
the Champion Watch and Jewelry Store at 657-659 Rizal Avenue, Sta. Cruz,
People vs. Tiongson Manila. The cot and the floor of the store were covered with blood, and empty
Nos. L-15201 and L-15202. October 31, 1962. watch-boxes were found scattered all around. As the incident was immediately
THE PEOPLE OF THE PHILIPPINES, plaintiff- reported to the police authorities, three policemen arrived at the scene of the crime
appellee, vs. POLICARPIO TIONGSON Y GARCIA and MAURICIO about twenty minutes later.
NAVARRO Y ORDILLO, defendants-appellants. A postmortem examination of the cadaver showed that the victim died of
Robbery with Homicide; Evidence; Written confessions of the extensive traumatic comminuted fractures of the skull, with contusions and
accused; Circumstances showing that confessions were freely made.—That the hemorrhages in the brain caused by a blow from a hard, blunt object with an
confessions of the accused were explained to them before they affixed their elevated edge like monkey wrench.
signatures thereto; that said confessions contain details that the police could not Two days after the discovery of the crime, the Cavite police authorities arrested
have possibly supplied or invented, and that the declarants tried to blame one Policarpio Tiongson and Rufino Galang while trying, through the latter’s sister, to
another for the killing; all the circumstances lead to the conclusion that the sell men’s and ladies’ wrist watches to one Amado Rustia. After being questioned
confessions were freely made. at police headquarters, they were taken for further investigation to Manila where
Same; Same; When co-conspirator’s testimony entitled to credence.—While Tiongson, in the evening of October 22, 1958, executed a sworn statement
testimony coming from the mouth of a co-conspirator must be accepted with admitting his participation in the commission of the robbery in question and
caution, the court is justified in giving credit to the same if no part thereof has been pointing to his co-defendant Navarro as the one who killed the deceased (Exh. A, p.
shown to be false. 288, rec.). Galang also executed a sworn statement admitting that he was in the
New Trial; Motion based on co-conspirator’s affidavit of house of Tiongson in the morning of October 19, 1958 and that in the morning of
recantation; Untrustworthiness of such evidence.—A motion for new trial based on the 21st of the same month, they agreed to sell the stolen watches in Cavite thru
newly discovered evidence consisting of an affidavit in which one convicted of the his sister. (Exh. O, p. 314, rec.) He also implicated Navarro and Salvador Villaveles
crime recants his previous testimony implicating his co-accused, should be denied as having participated in the commission of the crime (Exh. N, p. 309, rec.).
because of the inherent untrustworthiness of such evidence, coming, as it does, On November 3, 1958, Navarro was apprehended in Cabanatuan City. Brought
from one who has nothing or not much to lose by recanting previous testimony given to, and questioned in Manila he executed a written statement confessing his
under oath. participation in the commission of the crime but pointing to Tiongson as the slayer
of William Co Chi Chay (Exh. M, p. 300, rec).
COMPULSORY REVIEW of a judgment of the Court of First Instance of Manila. The trial court further found that defendants, being badly in need of money,
planned to rob the Champion
The facts are stated in the opinion of the Court. 433
Solicitor General for plaintiff-appellee. VOL. 6, OCTOBER 31, 1962 433
Manansala & Saturnino for defendants-appellants. People vs. Tiongson
Watch and Jewelry Store on the morning of Sunday, October 19, 1958; that to
PER CURIAM: facilitate their getaway after the robbery and to carry their loot to the provinces,
Navarro hired a car driven by Salvador Villaveles whom he took to Tiongson’s
Compulsory review of the judgment of the Court of First Instance of Manila finding house in the early morning of October 19; that Navarro and Villaveles then
Policarpio Tiongson y Garcia (in Criminal Case No. 46085) and Mauricio Navarro proceeded to Avenida Rizal, followed by Tiongson; that to gain entrance into the
y Ordillo (in Criminal Case No. 46242), guilty of the crime of robbery with homicide, store, Tiongson, who was acquainted with the deceased, brought along a watchclock
committed with the aggravating circumstances of evident premeditation, treachery which the latter had sent him for repairs days before; that once inside, Tiongson
and abuse of confidence, and sentencing each of them to death, to indemnify the hit the deceased on the head with a monkey wrench while the latter was sitting on
heirs of the deceased William Co Chi Chay, jointly and severally, in the sum of an army cot, causing a fracture in the cranium and other mortal wounds which led
P6,000, and to pay the costs. to his death; that meanwhile, Navarro ransacked the showcases, taking 67 watches
432 therefrom and scattering the empty boxes on the floor; that thereafter, defendants
432 SUPREME COURT REPORTS ANNOTATED left the store and were joined by Galang and Villaveles who were on guard outside.
Tiongson claims that his extrajudicial confession, and those of Navarro and
People vs. Tiongson
Galang were obtained through force and intimidation; that the lower court erred in
The facts found by the trial court are the following:
CRIMINAL LAW | PENALTIES P a g e 160 | 279
giving credit to the uncorroborated testimony of accomplice Salvador Villaveles,
and in not giving credit to his defense of alibi.
Navarro, for his part, alleges that the lower court erred in holding (1) that there
was conspiracy to commit the crime, without requiring the prosecution to establish
by independent evidence the existence of such conspiracy and (2) that he was
arrested in Cabanatuan City when the truth was that he surrendered peacefully to
the authorities.
The claim that the confessions mentioned above were obtained through force
and intimidation is unfounded.
Navarro signed his statement before Fiscal Cabrera who, according to the
evidence, explained its contents to him before he signed it. While Navarro, on the
witness stand, pointed out the portions of his confession that, according to him,
were his true answers and those that were supplied by his investigators, he did not
tell Fiscal Cabrera anything about this before he signed his confession. He was also
physically examined by the NBI after signing his statement, but he told the
examining physician nothing
434
434 SUPREME COURT REPORTS ANNOTATED
People vs. Tiongson
about the alleged duress he was previously subjected to. Indeed, that no such
unlawful means was employed is demonstrated by his own admission that he was
allowed to make deletions and corrections in the confession.
As far as the confession of Galang is concerned, the record shows that the
contents thereof were translated and explained to him before he affixed his
signature there-to. Similarly, he was subjected to a physical examination after
making the statement, but no evidence of maltreatment was found in his person.
Tiongson’s claim of maltreatment, on the other hand, is supported only by his
testimony, and there is sufficient evidence showing that whatever injuries he had
sustained during his confinement were not inflicted by the police authorities but
by a brother of the deceased.
Lastly, it should be observed first, that the confessions contain details that the
police could not have possibly supplied or invented, and second, that the declarants
tried to blame one another for the killing. These circumstances lead us to believe
that the confessions were freely made.
Tiongson’s claim that the lower court should not have failed on the
uncorroborated testimony of Salvador Villaveles is likewise untenable. Villaveles’
testimony in open court was merely confirmatory of the statements contained in
his confession (Exhibit P) in which he described how Tiongson and Navarro
conspired to commit the crime and how the crime was actually committed. While
testimony coming from the mouth of a co-conspirator must be accepted with
caution, we believe that in this case, the trial court was justified in giving credit to
that of Villaveles, no part of said testimony having been shown by appellants to be
false.
To support his alibi, Tiongson testified that on the morning of October 19, 1958
he had several visitors in his house located at 2316 Misericordia, Manila, one of
whom was a certain Rufino Galang who asked him to sell an outboard motor; that
CRIMINAL LAW | PENALTIES
another visitor named Adelaida Viray arrived between 9:30 and 10:00 o’clock and
still another named Esperanza Guhit arrived at about 10 o’clock, both having left
the house only before lunch time; that his co-accused Navarro and Villaveles were
among his visit-
435
VOL. 6, OCTOBER 31, 1962 435
People vs. Tiongson
ors at about 11 o’clock that morning, and they offered to sell him 65 brand new
watches for P2,000 which, according to them, were smuggled goods; that he was
able to pay them only P750 and agreed to pay the balance in two or three days; that
Viray and Guhit saw him pay for the watches and even offered some to them but
they refused to buy.
Tiongson’s alibi was correctly disregarded by the trial court. While his
testimony is somewhat incoherent, it sufficiently establishes the fact that among
his alleged visitors about 11 o’clock in the morning of October 19, 1958 were
Navarro and Villaveles, who brought with them a bag full of watches. As the crime
was committed at an earlier hour that same morning, it would seem reasonable to
assume that Tiongson and his confederates had repaired to his house with their
loot after committing the crime.
Appellant Navarro, for his part, testified that in the morning of October 17,
1958, he went to Novaliches to visit his friend, Simeon de Jesus; that he and the
latter went to witness a basketball game in Novaliches at about 8 o’clock a.m.,
having left the game only at 12 o’clock noon when they went to de Jesus’ house in
Barrio Gulod; that at 2 o’clock that afternoon he witnessed another basketball game
at the public plaza of Novaliches, and spent the night in the house of de Jesus; that
on the following day he went to the Forest Hills with some friends; that it was only
on November 1, 1958 that he learned from his sister in the house of de Jesus that
he was being charged with murder.
It is obvious that Navarro’s testimony is hard to believe. In the first place, why
he stayed for so many days in the house of de Jesus in Novaliches has not been
satisfactorily explained. In the second place, while he claims that his purpose in
going to Novaliches was to witness basketball games, he admitted that, in reality,
he did not know that such games were to be played until he arrived in said
municipality. On the other hand, Navarro’s witnesses do not seem to be reliable
ones. His intimate friend, Simeon de Jesus, could not even tell how many players
there are in a basketball team; while he and Navarro tes-
436
436 SUPREME COURT REPORTS ANNOTATED
People vs. Tiongson
tified that they were present at the start of the games at 8 o’clock in the morning,
Navarro’s other witness and friend, Manuel Austria, said that Navarro invited him
to the games only at 8:30 a.m. and that they arrived at the place where the
basketball games were being played at 8:40 a.m. To this we must add the
circumstance that, according to appellant Tiongson, Navarro went to his house at
Misericordia St., Manila at 11 o’clock in the morning of October 19. This precludes
the possibility of Navarro being in Novaliches that same morning. Indeed, that
P a g e 161 | 279
Navarro was in Manila that morning is admitted in his sworn statement given to
the police after his arrest in Cabanatuan City (Exhibit M).
Lastly, Navarro’s contention that the alleged conspiracy to commit the crime
had not been established by evidence other than the confessions mentioned
heretofore is without merit. After going over the testimony of Salvador Villaveles,
we are satisfied that the same is quite sufficient to establish the conspiracy.
Appellant Tiongson filed in this Court a motion for new trial based on newly
discovered evidence consisting of the affidavit of Villaveles in which the latter
recants his previous testimony implicating Tiongson. Petitions of this nature have
heretofore been denied by us because of the untrustworthiness of similar evidence
coming from the mouth of convicts or ex-convicts who have nothing or not much to
lose by recanting previous testimony given under oath. For this same reason
Tiongson’s motion should be, as it is hereby, denied.
WHEREFORE, the decisions appealed from being in accordance with law and
the evidence, the same are affirmed with costs.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes,
J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.
Decisions affirmed.
Notes.—See People v. Alcantara, 21 SCRA 906 and the annotation on The
Defense of Alibi in Criminal Cases, 21 SCRA 914-924. For other cases on alibi
see People v. Bautista, et al., L-17772, Oct. 31, 1962, post, and the
437
G.R. No. 206513. October 20, 2015.*
MUSTAPHA DIMAKUTA y MARUHOM, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
Criminal Law; Probation Law; The policy has been to allow convicted and
sentenced defendant to apply for probation within the fifteen (15)-day period for
perfecting an appeal.—On October 5, 1985, Section 4 was subsequently amended
by P.D. No. 1990. Henceforth, the policy has been to allow convicted and sentenced
defendant to apply for probation within the 15-day period for perfecting an appeal.
As modified, Section 4 of the Probation Law now reads: SEC. 4. Grant of
Probation.—Subject to the provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant and upon application by
said defendant within the period for perfecting an appeal, suspend the
execution of the sentence and place the defendant on probation for such period and
upon such terms and conditions as it may deem best; Provided, that no application
for probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction. Probation may be granted whether the
sentence imposes a term of imprisonment or a fine only. An application for
probation shall be filed with the trial court. The filing of the application shall be
deemed a waiver of the right to appeal. An order granting or denying probation
shall not be appealable.
Same; Same; In view of the latest amendment to Section 4 of the Probation
Law that “no application for probation shall be entertained or granted if the
defendant has perfected an appeal from the judgment of conviction,” prevailing
CRIMINAL LAW | PENALTIES
jurisprudence treats appeal and probation as mutually exclusive remedies because
the law is unmistakable about it.—Verily, Section 4 of the Probation Law provides
that the application for probation must be filed with the trial court within the 15-
day period for perfecting an appeal. The need to file it within such period is
intended to encourage offenders, who are willing to be reformed and rehabilitated,
to avail themselves of probation at the first opportunity. If the application for
probation is filed beyond the 15-day period, then the judgment becomes final and
executory and the lower court can no longer act on the application for probation.
On the other hand, if a notice of appeal is perfected, the trial court that rendered
the judgment of conviction is divested of any jurisdiction to act on the case, except
the execution of the judgment when it has become final and executory. In view of
the latest amendment to Section 4 of the Probation Law that “no application for
probation shall be entertained or granted if the defendant has perfected an appeal
from the judgment of conviction,” prevailing jurisprudence treats appeal and
probation as mutually exclusive remedies because the law is unmistakable about
it. Indeed, the law is very clear and a contrary interpretation would counter its
envisioned mandate. Courts have no authority to invoke “liberal interpretation” or
“the spirit of the law” where the words of the statute themselves, and as illuminated
by the history of that statute, leave no room for doubt or interpretation. To be sure,
the remedy of convicted felons who want to avail of the benefits of probation even
after the remedy of an
230
230 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
appeal is to go to the Congress and ask for the amendment of the law. To
surmise a converse construal of the provision would be dangerously encroaching on
the power of the legislature to enact laws and is tantamount to judicial legislation.
Same; Same; Probation is not a right granted to a convicted offender; it is a
special privilege granted by the State to a penitent qualified offender, who does not
possess the disqualifications under Section 9 of Presidential Decree (PD) No. 968,
as amended.—It was obvious then, as it is now, that the accused in Colinares v.
People, 662 SCRA 266 (2011), should not have been allowed the benefit of probation.
As I have previously stated and insisted upon, probation is not a right granted to a
convicted offender; it is a special privilege granted by the State to a penitent
qualified offender, who does not possess the disqualifications under Section 9 of
P.D. No. 968, as amended. Likewise, the Probation Law is not a penal law for it to
be liberally construed to favor the accused.
Same; Same; What Section 4 of the Probation Law prohibits is an appeal from
the judgment of conviction, which involves a review of the merits of the case and the
determination of whether the accused is entitled to acquittal.—To note, what
Section 4 of the Probation Law prohibits is an appeal from the judgment of
conviction, which involves a review of the merits of the case and the determination
P a g e 162 | 279
of whether the accused is entitled to acquittal. However, under the recommended
grounds for appeal which were enumerated earlier, the purpose of the appeal is not
to assail the judgment of conviction but to question only the propriety of the
sentence, particularly the penalty imposed or the crime for which the accused was
convicted, as the accused intends to apply for probation upon correction of the
penalty or conviction for the lesser offense. If the CA finds it proper to modify the
sentence, and the penalty finally imposed by the appellate court is within the
probationable period, or the crime for which the accused is eventually convicted
imposes a probationable penalty, application for probation after the case is
remanded to the trial court for execution should be allowed.
Same; Same; Section 4 of the Probation Law prohibits granting an application
for probation if an appeal from the sentence of conviction has been perfected by the
accused.—Probation should not be granted to the accused in the following
instances: 1. When the ac-
231
VOL. 773, OCTOBER 20, 2015 231
Dimakuta vs. People
cused is convicted by the trial court of a crime where the penalty imposed is
within the probationable period or a fine, and the accused files a notice of appeal;
and 2. When the accused files a notice of appeal which puts the merits of his
conviction in issue, even if there is an alternative prayer for the correction of the
penalty imposed by the trial court or for a conviction to a lesser crime, which is
necessarily included in the crime in which he was convicted where the penalty is
within the probationable period. Both instances violate the spirit and letter of the
law, as Section 4 of the Probation Law prohibits granting an application for
probation if an appeal from the sentence of conviction has been perfected by the
accused.
Same; Child Abuse Law; Sexual Abuse; Under Section 5, Article III of
Republic Act (RA) No. 7610, a child is deemed subjected to other sexual abuse when
he or she indulges in lascivious conduct under the coercion or influence of any
adult.—Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected
to other sexual abuse when he or she indulges in lascivious conduct under the
coercion or influence of any adult. This statutory provision must be distinguished
from Acts of Lasciviousness under Articles 336 and 339 of the RPC. As defined in
Article 336 of the RPC, Acts of Lasciviousness has the following elements: (1) That
the offender commits any act of lasciviousness or lewdness; (2) That it is done under
any of the following circumstances: a. By using force or intimidation; or b. When
the offended party is deprived of reason or otherwise unconscious; or c. When the
offended party is under 12 years of age; and (3) That the offended party is another
person of either sex. Article 339 of the RPC likewise punishes acts of lasciviousness
committed with the consent of the offended party if done by the same persons and
under the same circumstances mentioned in Articles 337 and 338 of the RPC, to
wit: 1. if committed against a virgin over twelve years and under eighteen
years of age by any person in public authority, priest, home-servant, domestic,
CRIMINAL LAW | PENALTIES
guardian, teacher, or any person who, in any capacity, shall be entrusted with the
education or custody of the woman; or 2. if committed by means of deceit against a
woman who is single or a widow of good reputation, over twelve but under
eighteen years of age.
Same; Rape; Rape Through Sexual Assault; Article 226-A, paragraph 2 of the
Revised Penal Code (RPC), punishes inserting of the penis into another person’s
mouth or anal orifice, or any instru-
232
232 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
ment or object, into the genital or anal orifice of another person if the victim
did not consent either it was done through force, threat or intimidation; or when the
victim is deprived of reason or is otherwise unconscious; or by means of fraudulent
machination or grave abuse of authority as sexual assault as a form of rape.—
Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into another
person’s mouth or anal orifice, or any instrument or object, into the genital or anal
orifice of another person if the victim did not consent either it was done through
force, threat or intimidation; or when the victim is deprived of reason or is
otherwise unconscious; or by means of fraudulent machination or grave abuse of
authority as sexual assault as a form of rape. However, in instances where the
lascivious conduct is covered by the definition under R.A. No. 7610, where the
penalty is reclusion temporal medium, and the act is likewise covered by sexual
assault under Article 266-A, paragraph 2 of the RPC, which is punishable
by prisión mayor, the offender should be liable for violation of Section 5(b), Article
III of R.A. No. 7610, where the law provides for the higher penalty of reclusion
temporal medium, if the offended party is a child victim. But if the victim is at least
eighteen (18) years of age, the offender should be liable under Art. 266-A, par. 2 of
the RPC and not R.A. No. 7610, unless the victim is at least eighteen (18) years and
she is unable to fully take care of herself or protect herself from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or mental disability or
condition, in which case, the offender may still be held liable for sexual abuse under
R.A. No. 7610.
Same; Same; Child Abuse Law; A child is presumed by law to be incapable of
giving rational consent to any lascivious act, taking into account the constitutionally
enshrined State policy to promote the physical, moral, spiritual, intellectual and
social well-being of the youth, as well as, in harmony with the foremost consideration
of the child’s best interests in all actions concerning him or her.—There could be no
other conclusion, a child is presumed by law to be incapable of giving rational
consent to any lascivious act, taking into account the constitutionally enshrined
State policy to promote the physical, moral, spiritual, intellectual and social well-
being of the youth, as well as, in harmony with the foremost consideration of the
child’s best interests in all actions concerning him or her. This is equally consistent
P a g e 163 | 279
with the declared policy of the State to provide special protection to children
from all forms of abuse, neglect,
233
VOL. 773, OCTOBER 20, 2015 233
Dimakuta vs. People
cruelty, exploitation and discrimination, and other conditions prejudicial to
their development; provide sanctions for their commission and carry out a program
for prevention and deterrence of and crisis intervention in situations of child abuse,
exploitation, and discrimination. Besides, if it was the intention of the framers of
the law to make child offenders liable only of Article 266-A of the RPC, which
provides for a lower penalty than R.A. No. 7610, the law could have expressly made
such statements.
Same; Same; Same; Sexual Abuse; The law does not require physical violence
on the person of the victim; moral coercion or ascendancy is sufficient.—Notably, a
child is considered as sexually abused under Section 5(b) of R.A. No. 7610 when he
or she is subjected to lascivious conduct under the coercion or influence of any
adult. Intimidation need not necessarily be irresistible. It is sufficient that some
compulsion equivalent to intimidation annuls or subdues the free exercise of the
will of the offended party. The law does not require physical violence on the person
of the victim; moral coercion or ascendancy is sufficient.
Same; Child Abuse Law; Children; Words and Phrases; Under Section 3(a) of
Republic Act (RA) No. 7610, “children” refers to “persons below eighteen (18) years
of age or those over but unable to fully take care of themselves or protect themselves
from abuse, neglect, cruelty, exploitation or discrimination because of a physical or
mental disability or condition.”—The victim is 16 years of age at the time of the
commission of the offense. Under Section 3(a) of R.A. No. 7610, “children” refers to
“persons below eighteen (18) years of age or those over but unable to fully take care
of themselves or protect themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition.”
VELASCO, JR., J., Dissenting Opinion:
Criminal Law; Probation Law; View that as held in Colinares v. People, 662
SCRA 266 (2011), the appellate court’s downward modification of the penalty
meted, from a non-probationable to a probationable one, amounted to an original
conviction for a probationable penalty.—As held in Colinares v. People, 662 SCRA
266 (2011), the appellate court’s downward modification of the penalty meted, from
a non-probationable to a probationable one, amounted to an original con-
234
CRIMINAL LAW | PENALTIES
234 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
viction for a probationable penalty. Under such circumstance, the Court held
that the offender should still be allowed to apply for the privilege of probation in
spite of his prior perfection of an appeal because the appeal was made at a time
when he was not yet a qualified offender. In other words, therein offender has
not yet lodged an appeal from the original judgment of conviction of a probationable
penalty, qualifying him to apply for probation under Sec. 4.
Same; Same; View that Sec. 4 of the Probation Law of 1976 clearly commands
that “no application for probation shall be entertained or granted if the defendant
perfected the appeal from the judgment of conviction.”—Sec. 4 clearly commands
that “no application for probation shall be entertained or granted if the defendant
perfected the appeal from the judgment of conviction.” At first blush, there is
nothing vague in the provision that calls for judicial interpretation. The provision,
as couched, mandates that the perfection of an appeal disqualifies an otherwise
qualified offender from applying for probation. Nevertheless, I fully concur with the
Court’s ruling in Colinares that the bar must be applied only to offenders who
were already qualified to apply for probation but opted to file an appeal instead.
An otherwise rigid application of the rule would defeat the very purpose of the
Probation Law, which is giving a qualified penitent offender the opportunity to be
placed on probation instead of being incarcerated.
Same; Same; View that the ponencia’s restrictive proposition would lead to a
baffling result — the very appeal that would have qualified the convicted felon to
apply for probation (i.e., the appeal that resulted in the downgrading of the offense
or the reduction of the penalty to a probationable one) would also be the very same
appeal that would disqualify him from availing thereof.—Unlike this modification
in the interpretation of Sec. 4 of PD No. 968 that was introduced in Colinares,
the ponencia’s imposition of additional restrictions for availing of the benefits
under the Probation Law is not in keeping with the spirit of the law. To recall,
the ponencia intimates that the added restrictions are based on the argument that
what is prohibited under the Probation Law is challenging the judgment of
conviction, which, in the majority’s posture, is the finding of guilt, without
distinction on whether the penalty imposed is probationable or not. According to
the majority, the accused may still lodge an appeal and qualify for probation if the
appeal is limited to praying
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for the reduction of the penalty imposed or downgrading the crime he is
convicted of, and should in no way insist on his innocence. With these requirements
in place, the majority effectively would want the accused to change his theory of
P a g e 164 | 279
the case and belatedly plead guilty on appeal to a lesser offense, akin to a last
minute plea-bargain. The problem here is that the ponencia’s interpretation is
tantamount to forcing the accused to already forego appealing for his acquittal at
a time that probation is not yet available. This goes against the rationale of the
law, which seeks to discourage from appealing only those who are, in the first
place, already qualified to apply for probation, but waste the opportunity
by insisting on their innocence. What is more, the ponencia’s restrictive
proposition would lead to a baffling result — the very appeal that would have
qualified the convicted felon to apply for probation (i.e., the appeal that
resulted in the downgrading of the offense or the reduction of the penalty
to a probationable one) would also be the very same appeal that would
disqualify him from availing thereof.
Same; Same; View that in ascertaining an offender’s penitence, the Supreme
Court (SC) has repeatedly held that the qualified offender’s perfection of an appeal
questioning his conviction, instead of beseeching the State’s generosity through an
application for probation at the first opportunity, is antithetical to remorse and
penitence.—In ascertaining an offender’s penitence, the Court has repeatedly held
that the qualified offender’s perfection of an appeal questioning his conviction,
instead of beseeching the State’s generosity through an application for probation at
the first opportunity, is antithetical to remorse and penitence. Bear in mind,
though, that the amendment was prompted by the State’s past experience where
qualified offenders “wager” their chances and still seek an acquittal, only to invoke
the privilege of probation when it is almost certain that they would not be found
innocent. It would, therefore, be erroneous to apply the same principle to
offenders who are not qualified, those who had no opportunity, to seek
the privilege in the first place. We cannot expect them to immediately show
remorse via applying for probation, putting their right to appeal on the line in so
doing, when they are not even qualified for the privilege under the law. In their
case, there is no wager and no “first opportunity” to apply for probation to speak
off, but a clear lack of option on the part of the offenders. They had no other choice
but to appeal.
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236 SUPREME COURT REPORTS ANNOTATED
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Same; Same; View that to hold, in the case at bar, that a formerly disqualified
offender who only became qualified for probation after judgment by an appellate
court is still disqualified from applying for the privilege is tantamount to amending
the law via judicial interpretation.—Well-entrenched is the rule that the primordial
duty of the Court is merely to apply the law in such a way that it does not usurp
legislative powers by judicial legislation. Thus, in the course of such application or
construction, it should not make or supervise legislation, or under the guise of
interpretation, modify, revise, amend, distort, remodel, or rewrite the law, or give
the law a construction which is repugnant to its terms. The Court should shy away
from encroaching upon the primary function of a coequal branch of the
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Government; otherwise, this would lead to an inexcusable breach of the doctrine of
separation of powers by means of judicial legislation. To hold, in the case at bar,
that a formerly disqualified offender who only became qualified for probation after
judgment by an appellate court is still disqualified from applying for the privilege
is tantamount to amending the law via judicial interpretation. With the Court’s
disposition of the instant petition, the majority is effectively placing additional
qualifications and grounds for disqualification that not only cannot be found
anywhere in the four corners of the statute, but, worse, defeat the very purpose for
which the Probation Law was enacted.
Same; Same; View that the ponencia is virtually sending a message to
convicted felons that they should already be penitent even before they are qualified
to apply for probation to be allowed to avail of the privilege in the off-chance that
the penalty meted on them is reduced or the crime they are convicted of is
downgraded on appeal.—The ponencia, in its postulation, basically legislates the
timeframe for an offender’s penitence. The ponencia is virtually sending a message
to convicted felons that they should already be penitent even before they are
qualified to apply for probation to be allowed to avail of the privilege in the off-
chance that the penalty meted on them is reduced or the crime they are convicted
of is downgraded on appeal. We have to consider though that it is only natural for
a person charged with a crime, subjected to a highly adversarial process, and going
up against the “People of the Philippines” in litigation, to be on the defensive and
insist on his innocence rather than readily sacrifice his liberty in gambling for a
mere probability of becoming eligible for, not necessarily entitled to, probation. This
does not mean,
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however, that he who is guilty but denies the commission of the crime even
after having been convicted by the trial court will never ever regret having
committed the offense. For his perceived lack of option, a litigant may be compelled
to appeal his conviction, without necessarily making him any less repentant later
on. It would not come as a surprise if it will only be after his appeal is heard, after
the penalty imposed upon him is lessened or after his crime was downgraded, after
a window of opportunity to receive a second lease in life opens, would his penitence
be manifest in his pleadings, would he apply for probation, and would he no longer
pursue the case or push his luck.
Same; Same; View that the appellate court’s judgment convicting therein
defendant, for the first time, of a probationable crime or imposing upon him a
probationable penalty should be treated as an original conviction, entitling him to
apply for probation in spite of perfecting an appeal.—To be clear, nowhere in the
Probation Law does it provide that the “appeal” from the judgment of conviction
should be that made from the trial court to the appellate court. Hence, the “appeal”
could very well refer to any of the three (3) opportunities to seek a review of a
judgment of conviction in criminal procedure: (a) questioning the judgments of the
P a g e 165 | 279
Municipal Trial Court, Metropolitan Trial Court, Municipal Circuit Trial Court,
and of the Municipal Trial Court in Cities before the Regional Trial Court; (b)
elevating the case from the Regional Trial Court to the Court of Appeals; and (c) by
assailing the unfavorable Decision of the Court of Appeals to this Court — the court
of last resort. Corollarily, it is submitted that the “judgment of conviction” should
not be taken to mean the initial finding of guilt, since, as maintained by the
majority in Colinares, an original judgment of conviction may also be handed down
by the appellate courts, especially when it involves the annulment or modification
of the trial court’s decision. As discussed, the appellate court’s judgment convicting
therein defendant, for the first time, of a probationable crime or imposing upon him
a probationable penalty should be treated as an original conviction, entitling
him to apply for probation in spite of perfecting an appeal. The appeal lodged by
the offender, which reduced his conviction to a probationable one, in no way
adversely affected his later-acquired eligibility.
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238 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
Same; Same; View that the Supreme Court (SC) should view the appellate
court’s judgment which effectively qualified the offender for probation as the
conviction from which the defendant should not appeal from if he wishes to apply
for the privilege of probation.—In line with the teachings in Colinares, the Court
should view the appellate court’s judgment which effectively qualified the
offender for probation as the conviction from which the defendant should
not appeal from if he wishes to apply for the privilege of probation. This
should be the case for the simple reason that he has not yet questioned this second
original conviction which qualifies him for probation. To reiterate, what the law
proscribes is the application for probation by a defendant who has appealed his
conviction for a probationable crime or with a probationable penalty. This
proscription should, therefore, come in only when the offender has already been
convicted of a probationable crime or imposed a probationable penalty, not when
he was still disqualified for probation.
Attorneys; View that the lawyer owes “entire devotion to the interest of the
client, warm zeal in the maintenance and defense of his rights and the exertion of
his utmost learning and ability,” to the end that nothing be taken or be withheld
from the latter, save by the rules of law, legally applied.—Simply put, a defense
lawyer is expected to advocate his client’s innocence in line with the
principle deeply embedded in our legal system that an accused is
presumed innocent until proven guilty beyond reasonable doubt. The
lawyer owes “entire devotion to the interest of the client, warm zeal in the
maintenance and defense of his rights and the exertion of his utmost learning and
ability,” to the end that nothing be taken or be withheld from the latter, save by
the rules of law, legally applied. Thus, unless and until his client has been convicted
with finality, we cannot expect his counsel to detract, or even require him to detract
from this duty, and convince his client to simply admit guilt and either seek a
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reduction of the penalty imposed or the downgrading of the crime he has been
convicted of just so the client may have a window of opportunity to apply for the
privilege of probation if and only if the appeal is granted. Instead, the client, in the
judicial forum, should be afforded the benefit of any and every remedy and defense
that is authorized by the law of the land, and he may expect his lawyer to assert
every such remedy or defense.
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Criminal Law; Probation Law; View that if, notwithstanding this downward
modification of the penalty imposed or the crime the accused is convicted of, the now
qualified defendant still appeals his new conviction on whatever ground, then, this
would be the time when his appeal would bar him from applying for the privilege
under Sec. 4.—The more precise interpretation, therefore, would be to grant this
opportunity to apply for probation when the accused is originally
convicted for a probationable offense or sentenced to suffer a
probationable penalty, without distinction on whether the said “original
conviction” was issued by the trial court or appellate court. What is
material is that the application for the privilege of probation be made at the first
opportunity, which is the period to appeal from when the offender first
became qualified for the privilege. For how can we say that the convicted
offender wagered for an acquittal on appeal instead of applying for probation when
he is not qualified to avail of the benefits of the Probation Law in the first place?
He simply had no other option at that point. As in Colinares, petitioner in this case
became qualified for probation only after the appellate court modified the trial
court’s ruling. If, notwithstanding this downward modification of the
penalty imposed or the crime the accused is convicted of, the now
qualified defendant still appeals his new conviction on whatever ground,
then, this would be the time when his appeal would bar him from applying
for the privilege under Sec. 4.
MENDOZA, J., Dissenting Opinion:
Criminal Law; Probation Law; View that probation is not a right of an
accused but a mere privilege, an act of grace and clemency or immunity conferred
by the State, which is granted to a deserving defendant who thereby escapes the
extreme rigors of the penalty imposed by law for the offense of which he was
convicted.—Probation is not a right of an accused but a mere privilege, an act of
grace and clemency or immunity conferred by the State, which is granted to a
deserving defendant who thereby escapes the extreme rigors of the penalty imposed
by law for the offense of which he was convicted. In recent jurisprudence, it has
been clarified that while the convicted offender has no right to such privilege,
nevertheless, he has the right to apply for that privilege, provided that he is not
disqualified from availing the benefits of probation.
P a g e 166 | 279

240
240 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
Same; Same; View that the purpose of the amendment is simply to prevent
speculation or opportunism on the part of the accused who, although already eligible
for probation, does not at once apply for probation, but did so only after failing in
his appeal.—It bears stressing that the evil of speculation and opportunism on the
part of the accused sought to be curbed by the amendment in P.D. No. 1990 was
not present in the case at bench inasmuch as the penalty imposed by the RTC
against Mustapha was not probationable at the outset. Besides, nowhere in the
amendatory decree does it state or even hint that in limiting the accused to the
choice of either appealing from the decision of the trial court or applying for
probation, the purpose is to deny him of the right to apply for probation in cases
like the one at bench where he became eligible for probation only because his
sentence was reduced on appeal. To repeat, the purpose of the amendment is simply
to prevent speculation or opportunism on the part of the accused who, although
already eligible for probation, does not at once apply for probation, but did so only
after failing in his appeal.
Same; Same; View that regardless of whether an accused appealed the merits
of the case or simply the correctness of the penalty imposed, the Court should not
distinguish insofar as the application of the Probation Law is concerned.—
Regardless of whether an accused appealed the merits of the case or simply the
correctness of the penalty imposed, the Court should not distinguish insofar as the
application of the Probation Law is concerned. The Court cannot expect Mustapha
to forgo the remedy of appeal and admit guilt over a crime he did not commit due
to an erroneous appreciation of the merits of the case. He should not accept the
erroneous judgment of the RTC for, in truth, he only committed Acts of
Lasciviousness with a maximum penalty of four (4) years and two (2) months.
Mustapha should not be made to suffer through the forfeiture of the right to apply
for probation simply because the RTC had blundered. In the Colinares v. People,
662 SCRA 266 (2011) case, it was written: The Probation Law never intended to
deny an accused his right to probation through no fault of his. The underlying
philosophy of probation is one of liberality towards the accused. Such philosophy is
not served by a harsh and stringent interpretation of the statutory provisions. As
Justice Vicente V. Mendoza said in his dissent in Francisco, the Probation Law
must not be regarded as a mere privilege to be given to the accused only where it
clearly appears he comes within its letter; to do so would be to disregard the
teaching in many cases that the
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Dimakuta vs. People
Probation Law should be applied in favor of the accused not because it is a
criminal law but to achieve its beneficent purpose.
Stare Decisis; View that once a point of law has been established by the
Supreme Court (SC), that point of law will, generally, be followed by the same court
and by all courts of lower rank in subsequent cases where the same legal issue is
raised.—Adherence to the Colinares case is dictated by this Court’s policy of
securing and maintaining certainty and stability of judicial decisions in accordance
with the legal maxim stare decisis et non quieta movere (or simply, stare
decisis which means “follow past precedents and do not disturb what has been
settled”). The principle, entrenched under Article 8 of the Civil Code, evokes the
general rule that, for the sake of certainty, a conclusion reached in one case should
be doctrinally applied to those that follow if the facts are substantially the same,
even though the parties may be different. Otherwise stated, once a point of law has
been established by the Court, that point of law will, generally, be followed by the
same court and by all courts of lower rank in subsequent cases where the same
legal issue is raised.
Same; View that stare decisis proceeds from the first principle of justice that,
absent powerful countervailing considerations, like cases ought to be decided
alike.—Stare decisis proceeds from the first principle of justice that, absent
powerful countervailing considerations, like cases ought to be decided alike. Hence,
where, as in this case, the same question relating to the same event have been put
forward by parties similarly situated as in a previous case litigated and decided by
a competent court, the rule of stare decisis is a bar to any attempt to relitigate the
same issue. Significantly, the respondent has not shown any strong and compelling
reason to persuade the Court that the manner of disposition in Colinares v. People,
pertaining to the matter of probation should not be observed and adopted in the
case at bench.
LEONEN, J., Concurring Opinion:
Criminal Law; Probation Law; View that probation and appeal are mutually
exclusive remedies. Probation is a mere privilege granted only to offenders who are
willing to be reformed and rehabilitated. It cannot be availed of when an offender
has already perfected his or her appeal from the judgment of conviction.—The
accused
242
242 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
touched the breast and vagina of a 16-year-old minor. The Court of Appeals
failed to appreciate that this would not have been possible without intimidation or
coercion. It lowered the penalty from a minimum imprisonment of ten (10) years to
P a g e 167 | 279
a minimum imprisonment of six (6) months. If the Decision of the Court of Appeals
is upheld, he will not serve a single day in prison for his acts. This is not what the
law requires. This is definitely not what it intends. Probation and appeal are
mutually exclusive remedies. Probation is a mere privilege granted only to
offenders who are willing to be reformed and rehabilitated. It cannot be availed of
when an offender has already perfected his or her appeal from the judgment of
conviction.
Same; Same; View that generally, after a finding of fact by a trial court of the
guilt of an accused beyond reasonable doubt, society is entitled to the expectation
that he or she serve his or her sentence. In this sense, probation is a mere privilege:
an exception granted to a general rule that is both reasonable and just.—Generally,
after a finding of fact by a trial court of the guilt of an accused beyond reasonable
doubt, society is entitled to the expectation that he or she serve his or her sentence.
In this sense, probation is a mere privilege: an exception granted to a general rule
that is both reasonable and just. I submit that Colinares v. People, 662 SCRA 266
(2011), should not be made to apply to this case for two
reasons. First, Colinares has not yet become established doctrine, and the dissents
of the case offer a sound and logical approach to the issue. Colinares read an
outcome, which is not supported by the text of law. Second, even assuming that the
ratio in Colinares is good law, it finds no application to this case since the Court of
Appeals erred in modifying the judgment of the trial court.
Same; Same; View that an accused who has been sentenced to a penalty of less
than six (6) years of imprisonment may only apply for probation if he or she has not
yet perfected his or her appeal from the judgment of conviction. There are no
exceptions to the rule in the text of the law.—The present law makes an appeal and
an application for probation mutually exclusive remedies. An accused who has been
sentenced to a penalty of less than six (6) years of imprisonment may only apply
for probation if he or she has not yet perfected his or her appeal from the judgment
of conviction. There are no exceptions to the rule in the text of the law. The intent to
make the choices exclusive from each other is seen in the context of the history of the
amend-
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Dimakuta vs. People
ments to this law. The amendment to Section 4 of the Probation Law has also
been the subject of several cases before this court. Two cases, in particular,
established the following principles: 1. The Probation Law is not a penal statute
that may be interpreted liberally in favor of the accused; and 2. Section 4 of the
Probation Law clearly mandates that no application for probation shall be
entertained or granted if the defendant has perfected the appeal from the judgment
of conviction.
Same; Same; Statutory Construction; View that it is a settled principle of
statutory construction that only penal statutes are construed liberally in favor of the
accused. It is also equally settled that the Probation Law is not a penal statute. The
CRIMINAL LAW | PENALTIES
provisions of the law, including Section 4, should be interpreted as stated, which is
that once an appeal has been perfected by the accused, he or she is not anymore
entitled to the benefits of probation.—It is a settled principle of statutory
construction that only penal statutes are construed liberally in favor of the accused.
It is also equally settled that the Probation Law is not a penal statute. The
provisions of the law, including Section 4, should be interpreted as stated, which is
that once an appeal has been perfected by the accused, he or she is not anymore
entitled to the benefits of probation.
Same; Same; View that the Probation Law intends to benefit only penitent
offenders, or those who admit to their offense and are willing to undergo
rehabilitation.—The Probation Law intends to benefit only penitent offenders, or
those who admit to their offense and are willing to undergo rehabilitation.
According to Section 2 of the Probation Law: Section 2. Purpose.—This Decree shall
be interpreted so as to: (a) promote the correction and rehabilitation of an offender
by providing him with individualized treatment; (b) provide an opportunity for the
reformation of a penitent offender which might be less probable if he were to serve
a prison sentence; and (c) prevent the commission of offenses. Moreover, the law
was amended precisely to prohibit those offenders from taking advantage of the
benefits of the Probation Law when their appeals for innocence are rendered futile.
Same; Same; View that petitioner’s appeal before the Court of Appeals (CA)
was made for the purpose of securing an acquittal; it was not for the purpose of
lowering his penalty to one within the
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244 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
probationable period. To allow him to apply for probation would be to
disregard the intent of the law: that appeal and probation are mutually exclusive
remedies.—Petitioner’s appeal before the Court of Appeals was made for the
purpose of securing an acquittal; it was not for the purpose of lowering his penalty
to one within the probationable period. To allow him to apply for probation would
be to disregard the intent of the law: that appeal and probation are mutually
exclusive remedies.
Same; Same; View that petitioner was correctly found by the trial court guilty
of violation of Article III, Section 5(b) of Republic Act (RA) No. 7610. Since this
offense is punishable by reclusion temporal or an imprisonment of more than six (6)
years, petitioner is not eligible for probation.—Petitioner was correctly found by the
trial court guilty of violation of Article III, Section 5(b) of Republic Act No. 7610.
Since this offense is punishable by reclusion temporal or an imprisonment of more
than six (6) years, petitioner is not eligible for probation.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Rommel N. Cariño for petitioner.
The Solicitor General for respondent.
P a g e 168 | 279
PERALTA, J.:
The Court is now faced with one of the predicaments I discussed in my
Dissenting and Concurring Opinion in Colinares v. People.1 The question
regarding the application of the Probation Law is again inescapably intertwined
with the present petition. Consequently, I must reiterate my assertions and
arguments in Colinares to the case at bar.
In the present controversy, petitioner Mustapha
Dimakuta y Maruhom alias Boyet was indicted for Violation of Section 5,
_______________
1 678 Phil. 482; 662 SCRA 266 (2011).
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Dimakuta vs. People
paragraph (b), Article III of Republic Act (R.A.) No. 7610 or the Special Protection
of Children Against Abuse, Exploitation and Discriminatory Act. The Information
reads:
That on or about the 24th day of September 2005, in the City of Las
Piñas, Philippines, and within the jurisdiction of this Honorable Court, the
above named accused, with lewd designs, did then and there willfully,
unlawfully and feloniously commit a lascivious conduct upon the person of
one AAA, who was then a sixteen (16)-year-old minor, by then and there
embracing her, touching her breast and private part against her will and
without her consent and the act complained of is prejudicial to the physical
and psychological development of the complainant.2
After trial, the RTC promulgated its Decision3 which convicted petitioner of the
crime charged and sentenced him to suffer an indeterminate penalty of
imprisonment ranging from ten (10) years of prisión mayor, as minimum, to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as
maximum, with the accessory penalty of perpetual absolute disqualification. In
addition, he was directed to pay a fine of P20,000.00, civil indemnity of P25,000.00,
and moral damages of P25,000.00.4
Feeling aggrieved, petitioner elevated the case to the Court of Appeals (CA)
arguing, among other things, that even assuming he committed the acts imputed,
still there is no evidence showing that the same were done without the victim’s
consent or through force, duress, intimidation or violence upon her. Surprisingly,
when asked to comment on the appeal, the Office of the Solicitor General (OSG),
relying heavily on People v. Abello,5 opined that petitioner should have been
_______________
2 Rollo, p. 33.
3 Penned by Presiding Judge Joselito dj. Vibandor (id., at pp. 33-43).
4 Id., at pp. 42-43.
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5 601 Phil. 373; 582 SCRA 378 (2009).
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Dimakuta vs. People
convicted only of Acts of Lasciviousness under Article 336 of the Revised Penal
Code (RPC) in view of the prosecution’s failure to establish that the lascivious acts
were attended by force or coercion because the victim was asleep at the time the
alleged acts were committed.
On June 28, 2012, the CA rendered a Decision6 adopting the recommendation
of the OSG. In modifying the RTC Decision, petitioner was found guilty of Acts of
Lasciviousness under Article 336 of the RPC and was sentenced to suffer the
indeterminate penalty of six (6) months of arresto mayor, as minimum, to four (4)
years and two (2) months of prisión correccional, as maximum. Likewise, he was
ordered to pay P20,000.00 as civil indemnity and P30,000.00 as moral damages.
Petitioner received a copy of CA Decision on July 6, 2012. 7 Instead of further
appealing the case, he filed on July 23, 2012 before the CA a manifestation with
motion to allow him to apply for probation upon remand of the case to the
RTC.8 Petitioner invoked the case of Colinares v. People9 which allowed petitioner
therein to apply for probation after his sentence was later reduced on appeal by the
Supreme Court.
The CA issued a Resolution on September 3, 2012 denying petitioner’s
manifestation with motion.10 It was ruled that Colinares is inapplicable since
petitioner therein raised as sole issue the correctness of the penalty imposed and
claimed that the evidence presented warranted only a conviction for the lesser
offense. Instead, the appellate court viewed as appropriate the case of Lagrosa v.
People,11 wherein the applica-
_______________
6 Penned by Associate Justice Myra V. Garcia-Fernandez, with Associate
Justices Vicente S.E. Veloso and Stephen C. Cruz, concurring (Rollo, pp. 117-130).
7 Id., at p. 132.
8 Id., at pp. 132-144.
9 Colinares v. People, supra note 1.
10 Rollo, pp. 26-29.
11 453 Phil. 270; 405 SCRA 357 (2003).
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Dimakuta vs. People
P a g e 169 | 279
tion for probation was denied because petitioners therein put in issue on appeal the
merits of their conviction and did not simply assail the propriety of the penalties
imposed.
Petitioner filed a motion for reconsideration,12 but it was denied in a
Resolution13 dated March 13, 2013; hence, this petition.
The petition should be denied.
At the outset, tracing the evolution of the present Probation Law is warranted
in order to better understand and apply the wisdom of its framers to cases invoking
its application.
In this jurisdiction, the concept of probation was introduced during the
American colonial period.14 For juvenile delinquents, Act No. 320315 was enacted
on December 3, 1924. It was later amended by Act Nos. 3309, 16 3559,17 and
3725.18 As to offenders who are eighteen years old and above, Act No. 422119 was
passed by the legislature and took effect on August 7, 1935. Said Act allowed
defendants who are convicted and sentenced by a Court of First Instance or by the
Supreme Court on appeal, except those who are convicted of offenses enumerated
in Section 8 thereof,20 to be placed on probation
_______________
12 Rollo, pp. 146-155.
13 Id., at p. 31.
14 1898-1945.
15 An Act Relating to the Care and Custody of Neglected and Delinquent
Children; Providing Probation Officers therefor; Imposing Penalties for Violations
of its Provisions and for Other Purposes.
16 Effective on December 2, 1926.
17 Effective on November 26, 1929.
18 Effective on November 21, 1930.
19 An Act Establishing Probation for Persons, Eighteen Years of Age or Above,
Convicted of Certain Crimes by the Courts of the Philippine Islands; Providing
Probation Officers Therefor; and for Other Purposes, dated August 7, 1935.
20 SEC. 8. This Act shall not apply to persons convicted of offenses
punishable by death or life imprisonment; to those convicted
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248 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
upon application after the sentence has become final and before its service has
begun.21 However, We declared in People v. Vera22 that Act No. 4221 is
unconstitutional and void as it constitutes an improper and unlawful delegation of
legislative authority to the provincial boards.
During the martial law period, then President Ferdinand E. Marcos issued
Presidential Decree (P.D.) No. 96823 on July 24, 1976. Originally, P.D. No. 968
allowed the filing of an application for probation at any time after the defendant
had been convicted and sentenced. Section 4 of which provides:
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SEC. 4. Grant of Probation.—Subject to the provisions of this Decree,
the court may, after it shall have convicted and sentenced a
defendant and upon application at any time of said defendant,
suspend the execution of said sentence and place the defendant on probation
for such period and upon such terms and conditions as it may deem best.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with
the trial court, with notice to the appellate court if an appeal has been taken
from the sentence of conviction. The filing of the application shall be deemed
a waiver of the right to appeal, or the automatic withdrawal of a pending
appeal.
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of homicide, treason, conspiracy or proposal to commit treason; to those convicted
of misprision of treason, sedition or espionage; to those convicted of piracy,
brigandage, arson, or robbery in band; to those convicted of robbery with violence
on persons when it is found that they displayed a deadly weapon; to those convicted
of corruption of minors; to those who are habitual delinquents; to those who have
been once on probation; and to those already-sentenced by final judgment at the
time of the approval of this Act.
21 Sec. 1.
22 65 Phil. 56 (1937).
23 Establishing a Probation System, Appropriating Funds therefor and Other
Purposes.
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An order granting or denying probation shall not be appealable.24
Later, the filing of an application for probation pending appeal was still allowed
when Section 4 of P.D. No. 968 was amended by P.D. No. 125725 on December 1,
1977 by providing that such application may be made after the defendant had been
convicted and sentenced but before he begins to serve his sentence. Thus:
SEC. 4. Grant of Probation.—Subject to the provisions of this Decree, the
court may, after it shall have convicted and sentenced a defendant
but before he begins to serve his sentence and upon his application,
suspend the execution of said sentence and place the defendant on probation for
such period and upon such terms and conditions as it may deem best.
P a g e 170 | 279
 The prosecuting officer concerned shall be notified by the court of the filing of
the application for probation and he may submit his comment on such application
within ten days from receipt of the notification.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine with subsidiary imprisonment in case of insolvency. An
application for probation shall be filed with the trial court, with notice to the
appellate court if an appeal has been taken from the sentence of conviction. The
filing of the application shall be deemed a waiver of the right to appeal, or the
automatic withdrawal of a pending appeal. In the latter case, however, if the
application is filed on or after the date of the judgment of the appellate court, said
application shall be acted upon by the trial court on the basis of the judgment of
the appellate court.
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24 Emphasis supplied.
25 Amending Certain Sections of Presidential Decree Numbered Nine
Hundred and Sixty-Eight, Otherwise Known as the Probation Law of 1976,
effective on December 1, 1977.
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250 SUPREME COURT REPORTS ANNOTATED
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An order granting or denying probation shall not be appealable. 26
On October 5, 1985, Section 4 was subsequently amended by P.D. No.
1990.27 Henceforth, the policy has been to allow convicted and sentenced defendant
to apply for probation within the 15-day period for perfecting an appeal. As
modified, Section 4 of the Probation Law now reads:
SEC. 4. Grant of Probation.—Subject to the provisions of this Decree,
the trial court may, after it shall have convicted and sentenced a
defendant and upon application by said defendant within the
period for perfecting an appeal, suspend the execution of the sentence
and place the defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, that no application for
probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with
the trial court. The filing of the application shall be deemed a waiver of the
right to appeal.
An order granting or denying probation shall not be appealable.28
The reason for the disallowance may be inferred from the preamble of P.D. No.
1990, thus:
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WHEREAS, it has been the sad experience that persons who are
convicted of offenses and who may be entitled to probation still appeal the
judgment of convic-
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26 Emphasis supplied.
27 Amending Presidential Decree no. 968, Otherwise Known as the Probation
Law of 1976, issued on October 5, 1985.
28 Emphasis supplied.
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tion even up to the Supreme Court, only to pursue their application for
probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution,
conviction and appeal entails too much time and effort, not to mention the
huge expenses of litigation, on the part of the State;
WHEREAS, the time, effort and expenses of the Government in
investigating and prosecuting accused persons from the lower courts up to
the Supreme Court, are oftentimes rendered nugatory when, after the
appellate Court finally affirms the judgment of conviction, the defendant
applies for and is granted probation;
WHEREAS, probation was not intended as an escape hatch and should
not be used to obstruct and delay the administration of justice, but should
be availed of at the first opportunity by offenders who are willing to be
reformed and rehabilitated;
WHEREAS, it becomes imperative to remedy the problems above
mentioned confronting our probation system[.]
Observing the developments in our Probation Law, the Court settled
in Llamado v. Court of Appeals:29
Examination of Section 4, after its amendment by P.D. No. 1257, reveals
that it had established a prolonged but definite period during which an
application for probation may be granted by the trial court. That period was:
“After [the trial court] shall have convicted and sentenced a defendant but
before he begins to serve his sentence.” Clearly, the cutoff time —
commencement of service of sentence — takes place not only after an appeal
has been taken from the sentence of conviction, but even after judgment has
been rendered by the appellate court and after judgment has become final.
Indeed, in this last situation, Section 4, as amended by P.D. No. 1257 pro-
_______________
P a g e 171 | 279
 29 256 Phil. 328; 174 SCRA 566 (1989).
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252 SUPREME COURT REPORTS ANNOTATED
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vides that “the application [for probation] shall be acted upon by the
trial court on the basis of the judgment of the appellate court”; for the
appellate court might have increased or reduced the original penalty
imposed by the trial court. x x x
xxxx
In sharp contrast with Section 4 as amended by PD No. 1257, in its present
form, Section 4 establishes a much narrower period during which an
application for probation may be filed with the trial court: “after [the trial
court] shall have convicted and sentenced a defendant and — within the
period for perfecting an appeal — .” As if to provide emphasis, a
new proviso was appended to the first paragraph of Section 4 that
expressly prohibits the grant of an application for probation “if the
defendant has perfected an appeal from the judgment of conviction.” It is
worthy of note too that Section 4 in its present form has dropped the phrase
which said that the filing of an application for probation means “the
automatic withdrawal of a pending appeal.” The deletion is quite logical
since an application for probation can no longer be filed once an appeal is
perfected; there can, therefore, be no pending appeal that would have to be
withdrawn.
xxxx
We find ourselves unable to accept the eloquently stated arguments of
petitioner’s counsel and the dissenting opinion. We are unable to persuade
ourselves that Section 4 as it now stands, in authorizing the trial court to
grant probation “upon application by [the] defendant within the period for
perfecting an appeal” and in reiterating in the proviso that:
“no application for probation shall be entertained or granted if the
defendant has perfected an appeal from the judgment of conviction.”
did not really mean to refer to the fifteen-day period established, as
indicated above, by B.P. Blg. 129, the Interim Rules and Guidelines
Implementing B.P. Blg. 129 and the 1985 Rules on Criminal Procedure, but
rather to
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some vague and undefined time, i.e., “the earliest opportunity” to withdraw
the defendant’s appeal. The whereas clauses invoked by petitioner did not,
CRIMINAL LAW | PENALTIES
of course, refer to the fifteen-day period. There was absolutely no reason
why they should have so referred to that period for the operative words of
Section 4 already do refer, in our view, to such fifteen-day
period. Whereas clauses do not form part of a statute, strictly speaking; they
are not part of the operative language of the statute.
Nonetheless, whereas clauses may be helpful to the extent they articulate
the general purpose or reason underlying a new enactment, in the present
case, an enactment which drastically but clearly changed the substantive
content of Section 4 existing before the promulgation of P.D. No.
1990. Whereas clauses, however, cannot control the specific terms of the
statute; in the instant case, the whereas clauses of P.D. No. 1990
do not purport to control or modify the terms of Section 4 as amended. Upon
the other hand, the term “period for perfecting an appeal” used in Section 4
may be seen to furnish specification for the loose language “first
opportunity” employed in the fourth whereas clause. “Perfection of an
appeal” is, of course, a term of art but it is a term of art widely understood
by lawyers and judges and Section 4 of the Probation Law addresses itself
essentially to judges and lawyers. “Perfecting an appeal” has no sensible
meaning apart from the meaning given to those words in our procedural law
and so the lawmaking agency could only have intended to refer to the
meaning of those words in the context of procedural law.30
In Sable v. People, et al.,31 this Court stated that Section 4 of the Probation Law
was amended precisely to put a stop to the practice of appealing from judgments of
conviction even if the sentence is probationable, for the purpose of securing an
acquittal and applying for the probation only if the accused
_______________
30 Id., at pp. 335-339; pp. 573-577.
31 602 Phil. 989; 584 SCRA 619 (2009).
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254 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
fails in his bid.32 The Probation Law “expressly requires that an accused must not
have appealed his conviction before he can avail himself of probation. This outlaws
the element of speculation on the part of the accused — to wager on the result of
his appeal — that when his conviction is finally affirmed on appeal, the moment of
truth well nigh at hand and the service of his sentence inevitable, he now applies
for probation as an ‘escape hatch,’ thus rendering nugatory the appellate court’s
affirmance of his conviction.”33
Verily, Section 4 of the Probation Law provides that the application for
probation must be filed with the trial court within the 15-day period for perfecting
an appeal. The need to file it within such period is intended to encourage offenders,
who are willing to be reformed and rehabilitated, to avail themselves of probation
P a g e 172 | 279
at the first opportunity.34 If the application for probation is filed beyond the 15-day
period, then the judgment becomes final and executory and the lower court can no
longer act on the application for probation. On the other hand, if a notice of appeal
is perfected, the trial court that rendered the judgment of conviction is divested of
any jurisdiction to act on the case, except the execution of the judgment when it
has become final and executory.
In view of the latest amendment to Section 4 of the Probation Law that “no
application for probation shall be entertained or granted if the defendant has
perfected an appeal from the judgment of conviction,” prevailing
jurisprudence35 treats appeal and probation as mutually exclusive remedies
because the law is unmistakable about it.36 Indeed, the law is very clear and a
contrary interpretation would counter its envisioned mandate. Courts have no
authority to invoke “lib-
_______________
32 Id., at p. 997; p. 627.
33 Id.
34 Id., at p. 996; pp. 626-627.
35 Id.; Francisco v. Court of Appeals, 313 Phil. 241; 243 SCRA 384 (1995);
and Llamado v. Court of Appeals, supra note 29.
36 Id.
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Dimakuta vs. People
eral interpretation” or “the spirit of the law” where the words of the statute
themselves, and as illuminated by the history of that statute, leave no room for
doubt or interpretation.37 To be sure, the remedy of convicted felons who want to
avail of the benefits of probation even after the remedy of an appeal is to go to the
Congress and ask for the amendment of the law. To surmise a converse construal
of the provision would be dangerously encroaching on the power of the legislature
to enact laws and is tantamount to judicial legislation.
With due respect, however, to the ponente and the majority opinion
in Colinares,38 the application of the Probation Law in the said case deserves a
second hard look so as to correct the mistake in the application of the law in that
particular case and in similar cases which will be filed before the courts and
inevitably elevated to Us like this petition.
To refresh, Colinares concluded that since the trial court imposed a penalty
beyond what is allowed by the Probation Law, albeit erroneously, the accused was
deprived of his choice to apply for probation and instead was compelled to appeal
the case. The reprehensible practice intended to be avoided by the law was,
therefore, not present when he appealed the trial court’s decision. Taking into
account that the
_______________
CRIMINAL LAW | PENALTIES
37 Llamado v. Court of Appeals, supra note 29 at pp. 339-340; p. 577.
38 The Court En Banc voted 9-6 in favor of Justice Roberto A. Abad, ponente.
Corona (then CJ.), Carpio, Velasco, Jr., Leonardo-De Castro, Del Castillo, Perez,
Mendoza and Reyes, JJ., concur.
Brion, J., joining J. Peralta’s Concurring and Dissenting Opinion.
Peralta, J., Concurring and Dissenting Opinion.
Bersamin, J., joining J. Peralta’s Concurring and Dissenting Opinion.
Villarama, Jr., J., Concurring and Dissenting Opinion.
Sereno, J. (now CJ.), joining Justices Peralta and Villarama, Jr.
Perlas-Bernabe, J., joining J. Villarama, Jr.
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256 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
accused argued in his appeal that the evidence presented against him warranted
his conviction only for attempted, not frustrated, homicide, the majority of the
Court opined that the accused had purposely sought to bring down the impossible
penalty in order to allow him to apply for probation.
It was obvious then, as it is now, that the accused in Colinares should not have
been allowed the benefit of probation. As I have previously stated and insisted
upon, probation is not a right granted to a convicted offender; it is a special privilege
granted by the State to a penitent qualified offender, 39 who does not possess the
disqualifications under Section 9 of P.D. No. 968, as amended. 40 Likewise, the
Probation Law is not a penal law for it to be liberally construed to favor the
accused.41
In the American law paradigm, probation is considered as an act of clemency
and grace, not a matter of right.42 It is a privilege granted by the State, not a right
to which a criminal
_______________
39 Sable v. People, supra note 31 at p. 995; p. 625.
40 SEC. 9. Disqualified Offenders.—The benefits of this Decree shall not be
extended to those:
a. sentenced to serve a maximum term of imprisonment of more than six
years;
b. convicted of subversion or any crime against the national security or the
public order;
c. who have previously been convicted by final judgment of an offense
punished by imprisonment of not less than one month and one day and/or a fine of
not less than Two Hundred Pesos;
d. who have been once on probation under the provisions of this Decree; and
e. who are already serving sentence at the time the substantive provisions of
this Decree became applicable pursuant to Section 33 hereof.
41 Pablo v. Castillo, 391 Phil. 873, 878; 337 SCRA 176, 181 (2000); Llamado v.
Court of Appeals, supra note 29 at p. 338; p. 577.
P a g e 173 | 279
 42 People v. Anderson, 50 Cal. 4th 19, 235 P.3d 11 (2010).
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Dimakuta vs. People
defendant is entitled.43 In City of Aberdeen v. Regan,44 it was pronounced that:
The granting of a deferred sentence and probation, following a plea or verdict
of guilty, is a rehabilitative measure and, as such, is not a matter of right but is a
matter of grace, privilege, or clemency granted to the deserving.
As such, even in the American criminal justice model, probation should be
granted only to the deserving or, in our system, only to qualified “penitent
offenders” who are willing to be reformed and rehabilitated. Corollarily, in this
jurisdiction, the wisdom behind the Probation Law is outlined in its stated
purposes, to wit:
(a) promote the correction and rehabilitation of an offender by providing him
with individualized treatment;
(b) provide an opportunity for the reformation of a penitent
offender which might be less probable if he were to serve a prison sentence; and
(c) prevent the commission of offenses.45
As I have previously indicated in Colinares, if this Court will adopt as
jurisprudential doctrine the opinion that an accused may still be allowed to apply
for probation even if he has filed a notice of appeal, it must be categorically stated
that such appeal must be limited to the following grounds:
1. When the appeal is merely intended for the correction of the penalty
imposed by the lower court, which when corrected would entitle the accused
to apply for probation; and
_______________
43 Dean v. State, 57 So.3d 169 (2010)
44 170 Wash. 2d 103, 239 P.3d 1102 (2010). (Emphasis supplied)
45 P.D. No. 968, Sec. 2. (Emphasis supplied)
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258 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
2. When the appeal is merely intended to review the crime for which
the accused was convicted and that the accused should only be liable to the
lesser offense which is necessarily included in the crime for which he was
CRIMINAL LAW | PENALTIES
originally convicted and the proper penalty imposable is within the
probationable period.
In both instances, the penalty imposed by the trial court for the crime
committed by the accused is more than six years; hence, the sentence disqualifies
the accused from applying for probation. The accused should then be allowed to file
an appeal under the aforestated grounds to seek a review of the crime and/or
penalty imposed by the trial court. If, on appeal, the appellate court finds it proper
to modify the crime and/or the penalty imposed, and the penalty finally imposed is
within the probationable period, the accused should still be allowed to apply for
probation.
In addition, before an appeal is filed based on the grounds enumerated above,
the accused should first file a motion for reconsideration of the decision of the trial
court anchored on the above stated grounds and manifest his intent to apply for
probation if the motion is granted. The motion for reconsideration will give the trial
court an opportunity to review and rectify any errors in its judgment, while the
manifestation of the accused will immediately show that he is agreeable to the
judgment of conviction and does not intend to appeal from it, but he only seeks a
review of the crime and/or penalty imposed, so that in the event that the penalty
will be modified within the probationable limit, he will immediately apply for
probation. Without such motion for reconsideration, the notice of appeal should be
denied outright.
The notice of appeal should contain the following averments:
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Dimakuta vs. People
(1) that an earlier motion for reconsideration was filed but was denied by the
trial court;
(2) that the appeal is only for reviewing the penalty imposed by the lower
court or the conviction should only be for a lesser crime necessarily included in the
crime charged in the information; and
(3) that the accused-appellant is not seeking acquittal of the conviction.
To note, what Section 4 of the Probation Law prohibits is an appeal from
the judgment of conviction, which involves a review of the merits of the case and
the determination of whether the accused is entitled to acquittal. However, under
the recommended grounds for appeal which were enumerated earlier, the purpose
of the appeal is not to assail the judgment of conviction but to question only the
propriety of the sentence, particularly the penalty imposed or the crime for which
the accused was convicted, as the accused intends to apply for probation upon
correction of the penalty or conviction for the lesser offense. If the CA finds it proper
to modify the sentence, and the penalty finally imposed by the appellate court is
within the probationable period, or the crime for which the accused is eventually
P a g e 174 | 279
convicted imposes a probationable penalty, application for probation after the case
is remanded to the trial court for execution should be allowed.
It is believed that the recommended grounds for appeal do not contravene
Section 4 of the Probation Law, which expressly prohibits only an appeal from the
judgment of conviction. In such instances, the ultimate reason of the accused for
filing the appeal based on the aforestated grounds is to determine whether he may
avail of probation based on the review by the appellate court of the crime and/or
penalty imposed by the trial court. Allowing the aforestated grounds for appeal
would give an accused the opportunity to apply for probation if his ground for
appeal is found to be meritorious by the appellate court, thus, serving the purpose
of the Proba-
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260 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
tion Law to promote the reformation of a penitent offender outside of prison.
On the other hand, probation should not be granted to the accused in the
following instances:
1. When the accused is convicted by the trial court of a crime where the
penalty imposed is within the probationable period or a fine, and the accused
files a notice of appeal; and
2. When the accused files a notice of appeal which puts the merits of
his conviction in issue, even if there is an alternative prayer for the
correction of the penalty imposed by the trial court or for a conviction to a
lesser crime, which is necessarily included in the crime in which he was
convicted where the penalty is within the probationable period.
Both instances violate the spirit and letter of the law, as Section 4 of the
Probation Law prohibits granting an application for probation if an appeal from
the sentence of conviction has been perfected by the accused.
In this case, petitioner appealed the trial court’s judgment of conviction before
the CA alleging that it was error on the part of the RTC to have found him guilty
of violating Section 5(b), Article III of R.A. No. 7610. He argued that the RTC should
not have given much faith and credence to the testimony of the victim because it
was tainted with inconsistencies. Moreover, he went on to assert that even
assuming he committed the acts imputed on him, still there was no evidence
showing that the lascivious acts were committed without consent or through force,
duress, intimidation or violence because the victim at that time was in deep
slumber. It is apparent that petitioner anchored his appeal on a claim of innocence
and/or lack of sufficient evidence to support his conviction of the offense charged,
which is clearly inconsistent with the tenor of the Probation Law that only qualified
penitent offender are allowed to apply for probation. The CA,
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Dimakuta vs. People
therefore, did not err in applying the similar case of Lagrosa v. People46 wherein
the protestations of petitioners therein did not simply assail the propriety of the
penalties imposed but meant a profession of guiltlessness, if not complete
innocence.
To be sure, if petitioner intended in the first instance to be entitled to apply for
probation he should have admitted his guilt and buttressed his appeal on a claim
that the penalty imposed by the RTC was erroneous or that he is only guilty of a
lesser offense necessarily included in the crime for which he was originally
convicted. Unfortunately for him, he already perfected his appeal and it is late in
the day to avail the benefits of probation despite the imposition of the CA of a
probationable penalty.
As regards the CA Decision convicting petitioner of the crime of Acts of
Lasciviousness under Article 336 of the RPC, such conclusion clearly contravenes
the law and existing jurisprudence.
Petitioner was charged and convicted by the trial court with violation of Section
5(b), Article III of R.A. No. 7610 based on the complaint of a sixteen (16)-year-old
girl for allegedly molesting her by touching her breast and vagina while she was
sleeping. The provision reads:
SEC. 5. Child Prostitution and Other Sexual Abuse.—Children,
whether male or female, who for money, profit, or any other consideration
or due to the coercion or influence of any adult, syndicate or group,
indulge in sexual intercourse or lascivious conduct, are deemed to be
children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion
perpetua shall be imposed upon the following:
xxxx
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46 Lagrosa v. People, supra note 11.
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262 SUPREME COURT REPORTS ANNOTATED
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(b) Those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subject to other sexual
abuse; Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for
rape or lascivious conduct, as the case may be: Provided, That the penalty
for lascivious conduct when the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period. x x x (Emphasis supplied)
P a g e 175 | 279
 The elements of sexual abuse are as follows:
1. The accused commits the act of sexual intercourse or lascivious
conduct.
2. The said act is performed with a child exploited in prostitution or
subjected to sexual abuse.
3. The child, whether male or female, is below 18 years of age.47
Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to
other sexual abuse when he or she indulges in lascivious conduct under the coercion
or influence of any adult.48 This statutory provision must be distinguished from
Acts of Lasciviousness under Articles 336 and 339 of the
_______________
47 People v. Larin, 357 Phil. 987, 997; 297 SCRA 309, 318 (1998). See also Imbo
v. People, G.R. No. 197712, April 20, 2015, 756 SCRA 196; People v. Gaduyon, G.R.
No. 181473, November 11, 2013, 709 SCRA 129, 149; Caballo v. People, G.R. No.
198732, June 10, 2013, 698 SCRA 227, 238; Navarrete v. People, 542 Phil. 496, 510;
513 SCRA 509, 521 (2007); and Amployo v. People, 496 Phil. 747, 758; 457 SCRA
282, 295 (2005).
48 Olivarez v. Court of Appeals, 503 Phil. 421, 432; 465 SCRA 465, 475 (2005),
citing People v. Larin, id., and Amployo v. People, id.
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VOL. 773, OCTOBER 20, 2015 263
Dimakuta vs. People
RPC. As defined in Article 336 of the RPC, Acts of Lasciviousness has the
following elements:
(1) That the offender commits any act of lasciviousness or lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise
unconscious; or
c. When the offended party is under 12 years of age; and
(3) That the offended party is another person of either sex.49
Article 339 of the RPC likewise punishes acts of lasciviousness committed with
the consent of the offended party if done by the same persons and under the same
circumstances mentioned in Articles 337 and 338 of the RPC, to wit:
1. if committed against a virgin over twelve years and under eighteen
years of age by any person in public authority, priest, home-servant, domestic,
guardian, teacher, or any person who, in any capacity, shall be entrusted with the
education or custody of the woman; or
CRIMINAL LAW | PENALTIES
2. if committed by means of deceit against a woman who is single or a widow
of good reputation, over twelve but under eighteen years of age.
Therefore, if the victim of the lascivious acts or conduct is over 12 years of age
and under eighteen (18) years of age, the accused shall be liable for:
_______________
49 People v. Bonaagua, G.R. No. 188897, June 6, 2011, 650 SCRA 620,
638; Flordeliz v. People, 628 Phil. 124, 140-141; 614 SCRA 225, 240-241
(2010); Navarrete v. People, supra note 47 at p. 506; p. 517; and Amployo v.
People, supra note 47 at p. 755; pp. 291-292.
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264 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
1. Other acts of lasciviousness under Art. 339 of the RPC, where the
victim is a virgin and consents to the lascivious acts through abuse of
confidence or when the victim is single or a widow of good
reputation and consents to the lascivious acts through deceit;
2. Acts of lasciviousness under Art. 336 if the act of lasciviousness is
not covered by lascivious conduct as defined in R.A. No. 7610. In case the
acts of lasciviousness is covered by lascivious conduct under R.A. No. 7610
and it is done through coercion or influence, which establishes absence or
lack of consent, then Art. 336 of the RPC is no longer applicable; or
3. Section 5(b), Article III of R.A. No. 7610, where there was no consent
on the part of the victim to the lascivious conduct, which was done through
the employment of coercion or influence. The offender may likewise be liable
for sexual abuse under R.A. No. 7610 if the victim is at least eighteen (18)
years and she is unable to fully take care of herself or protect herself from
abuse, neglect, cruelty, exploitation or discrimination because of a physical
or mental disability or condition.50
Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into
another person’s mouth or anal orifice, or any instrument or object, into the genital
or anal orifice of another person if the victim did not consent either it was done
through force, threat or intimidation; or when the victim is deprived of reason or is
otherwise unconscious; or by means of fraudulent machination or grave abuse of
authority as sexual assault as a form of rape. However, in instances where the
lascivious conduct is covered by the definition under R.A. No. 7610, where the
penalty is reclusion temporal medium, and the act is likewise covered by sexual
assault under Article
_______________
50 R.A. No. 7610, Sec. 3(a).
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Dimakuta vs. People
266-A, paragraph 2 of the RPC, which is punishable by prisión mayor, the
offender should be liable for violation of Section 5(b), Article III of R.A. No. 7610,
where the law provides for the higher penalty of reclusion temporal medium, if the
offended party is a child victim. But if the victim is at least eighteen (18) years of
age, the offender should be liable under Art. 266-A, par. 2 of the RPC and not R.A.
No. 7610, unless the victim is at least eighteen (18) years and she is unable to fully
take care of herself or protect herself from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition, in which
case, the offender may still be held liable for sexual abuse under R.A. No. 7610.
There could be no other conclusion, a child is presumed by law to be incapable
of giving rational consent to any lascivious act, taking into account the
constitutionally enshrined State policy to promote the physical, moral, spiritual,
intellectual and social well-being of the youth, as well as, in harmony with the
foremost consideration of the child’s best interests in all actions concerning him or
her.51 This is equally consistent with the declared policy of the State to provide
special protection to children from all forms of abuse, neglect,
cruelty, exploitation and discrimination, and other conditions prejudicial to their
development; provide sanctions for their commission and carry out a program for
prevention and deterrence of and crisis intervention in situations of child abuse,
exploitation, and discrimination.52 Besides, if it was the intention of the framers of
the law to make child offenders liable only of Article 266-A of the RPC, which
provides for a lower penalty than R.A. No. 7610, the law could have expressly made
such statements.
_______________
51 See Malto v. People, 560 Phil. 119, 139-142; 533 SCRA 643, 664 (2007).
52 R.A. No. 7610, Art. 1, Sec. 2.
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266 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
As correctly found by the trial court, all the elements of sexual abuse under
Section 5(b), Article III of R.A. No. 7610 are present in the case at bar.
First, petitioner’s lewd advances of touching the breasts and vagina of his
hapless victim constitute lascivious conduct as defined in Section 32, Article XIII
of the Implementing Rules and Regulations (IRR) of R.A. No. 7610:
[T]he intentional touching, either directly or through clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction
of any object into the genitalia, anus or mouth, of any person, whether of
CRIMINAL LAW | PENALTIES
the same or opposite sex, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic area of a
person.53
Second, petitioner clearly has moral ascendancy over the minor victim not just
because of his relative seniority but more importantly due to the presumed
presence of mutual trust and confidence between them by virtue of an existing
employment relationship, AAA being a domestic helper in petitioner’s household.
Notably, a child is considered as sexually abused under Section 5(b) of R.A. No.
7610 when he or she is subjected to lascivious conduct under the coercion or
influence of any adult. Intimidation need not necessarily be irresistible. It is
sufficient that some compulsion equivalent to intimidation annuls or subdues the
free exercise of the will of the offended party.54 The law does not require physical
vio-
_______________
53 People v. Larin, supra note 47 at pp. 1005-1006; p. 326. See also Imbo v.
People, supra note 47; People v. Gaduyon, supra note 47 at p. 148; Navarrete v.
People, supra note 47 at p. 511; pp. 521-522; and Amployo v. People, supra note 47
at p. 759; p. 295.
54 People v. Gerandoy, G.R. No. 202838, September 17, 2014, 735 SCRA 520,
540; Caballo v. People, supra note 47 at pp. 242-243; Garingarao v. People, 669
Phil. 512, 524; 654 SCRA 243, 254-255 (2011); People
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Dimakuta vs. People
lence on the person of the victim; moral coercion or ascendancy is
sufficient.55 On this point, Caballo v. People56 explicated:
As it is presently worded, Section 5, Article III of RA 7610 provides that when
a child indulges in sexual intercourse or any lascivious conduct due to the
coercion or influence of any adult, the child is deemed to be a “child exploited
in prostitution and other sexual abuse.” In this manner, the law is able to act
as an effective deterrent to quell all forms of abuse, neglect, cruelty, exploitation
and discrimination against children, prejudicial as they are to their development.
In this relation, case law further clarifies that sexual intercourse or lascivious
conduct under the coercion or influence of any adult exists when there is some
form of compulsion equivalent to intimidation which subdues the free
exercise of the offended party’s free will. Corollary thereto, Section 2(g) of the
Rules on Child Abuse Cases conveys that sexual abuse involves the element of
influence which manifests in a variety of forms. It is defined as:
The employment, use, persuasion, inducement, enticement or coercion
of a child to engage in, or assist another person to engage in, sexual
P a g e 177 | 279
 intercourse or lascivious conduct or the molestation, prostitution, or incest
with children.
To note, the term “influence” means the “improper use of power or trust in any 269
way that deprives a person of free will and substitutes another’s objective.” VOL. 773, OCTOBER 20, 2015 269
Meanwhile, “coercion” is the “improper use of x x x power to compel another to
submit to the wishes of one who wields it.”57 Dimakuta vs. People
_______________ recting the penalty imposed to qualify him for probation or where he files an
appeal specifically claiming that he should be found guilty of a lesser offense
v. Rellota, 640 Phil. 471; 626 SCRA 422 (2010); People v. Abello, supra note 5 at p. necessarily included with the crime originally filed with a prescribed penalty which
393; p. 395; and Amployo v. People, supra note 47 at p. 759; pp. 295-296. is probationable.
55 People v. Larin, supra note 47 at p. 1008; p. 329. SO ORDERED.
56 Caballo v. People, supra note 47. Sereno (CJ.), Brion, Bersamin, Villarama, Jr., Reyes and Perlas-Bernabe,
57 Id., at pp. 242-243. JJ., concur.
Carpio, Del Castillo and Perez, JJ., On Official Leave.
Velasco, Jr., J., I join dissent of Justice Mendoza and register also my
Dissenting Opinion.
268 Leonardo-De Castro, J., I join the Dissenting Opinion of Justice Mendoza.
268 SUPREME COURT REPORTS ANNOTATED Mendoza, J., See Dissenting Opinion.
Leonen, J., See Concurring Opinion.
Dimakuta vs. People Jardeleza, J., No part.
Finally, the victim is 16 years of age at the time of the commission of the
offense. Under Section 3(a) of R.A. No. 7610, “children” refers to “persons below
eighteen (18) years of age or those over but unable to fully take care of themselves DISSENTING OPINION
or protect themselves from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition.” VELASCO, JR., J.:
The decision of the trial court finding the petitioner guilty of Violation of Section When the law does not qualify, We should not qualify.1
5(b), Article III R.A. No. 7610 should have been upheld by the CA instead of
erroneously adopting the recommendation of the OSG, which inaccurately relied For resolution is the recurring question of whether an appellate court’s
on People v. Abello.58 In said case, the decisive factor for the acquittal of the accused downgrading of a convict’s offense or penalty — from a non-probationable to a
was not the absence of coercion or intimidation on the offended party, who was then probationable one — subsequently entitles the accused to apply for the privilege of
sleeping at the time the lascivious act was committed, but the fact that the victim probation in spite of his prior perfection of an appeal. Ultimately, this issue boils
could not be considered as a “child” under R.A. No. 7610. This Court held that while down to the interpretation of Section 4
the twenty-one-year-old woman has polio as a physical disability that rendered her _______________
incapable of normal function, the prosecution did not present any testimonial or
documentary evidence — any medical evaluation or finding from a qualified 1 Corpuz v. People, G.R. No. 180016, April 29, 2014, 724 SCRA 1, 33,
physician, psychologist or psychiatrist — attesting that the physical condition citing Asejo v. People, 555 Phil. 106; 528 SCRA 114 (2007).
rendered her incapable of fully taking care of herself or of protecting herself against
sexual abuse.
Thus, it is clear that petitioner could not have been entitled to apply for
270
probation in the first place. Regrettably, since neither the accused nor the OSG
questioned the CA Decision, it has attained finality and to correct the error at this 270 SUPREME COURT REPORTS ANNOTATED
stage is already barred by the right of the accused against double jeopardy. Dimakuta vs. People
Based on the above disquisitions, the petitioner should be denied the benefit of of Presidential Decree (PD) No. 968, otherwise known as the Probation Law of
the Probation Law and that the Court should adopt the recommendations above 1976, as amended by PD No. 1990.2 The provision pertinently reads:
stated in situations where an accused files an appeal for the sole purpose of cor-
_______________ Sec. 4. Grant of Probation.—Subject to the provisions of this Decree,
the trial court may, after it shall have convicted and sentenced a defendant
58 People v. Abello, supra note 5.58 People v. Abello, supra note 5.
CRIMINAL LAW | PENALTIES P a g e 178 | 279
 and upon application by said defendant within the period for perfecting an
appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may
deem best; Provided, that no application for probation shall be
entertained or granted if the defendant perfected the appeal from
the judgment of conviction. (emphasis ours)
Initially, the Court strictly interpreted the provision as barring the convicted
felon from applying for probation if he opted to resort to filing an appeal. 3 The
rationale behind the disqualification was enunciated by the Court in Francisco v.
Court of Appeals, thus:
Probation is a special privilege granted by the state to a penitent qualified
offender. It essentially rejects appeals and encourages an otherwise
eligible convict to immediately admit his liability and save the state of time,
effort and expenses to jettison an appeal. The law expressly requires that an
accused must not have appealed his conviction before he can avail of
probation. This outlaws the element of speculation on the part of the accused —
to wager on the result of his appeal — that when his conviction is finally af-
_______________
2 Amending Presidential Decree no. 968, otherwise known as the Probation
Law of 1976.
3 See Almero v. People, G.R. No. 188191, March 12, 2014, 718 SCRA
698; Colinares v. People, G.R. No. 182748, December 13, 2011, 662 SCRA 266; Sable
v. People, G.R. No. 177961, April 7, 2009, 584 SCRA 619; Soriano v. Court of
Appeals, G.R. No. 123936, March 4, 1999, 304 SCRA 231.
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Dimakuta vs. People
firmed on appeal, the moment of truth well-nigh at hand, and the service of his
sentence inevitable, he now applies for probation as an “escape hatch” thus
rendering nugatory the appellate court’s affirmance of his conviction.
Consequently, probation should be availed of at the first opportunity by
convicts who are willing to be reformed and rehabilitated, who manifest
spontaneity, contrition and remorse.4 (emphasis ours)
So it was held that perfecting an appeal automatically disqualifies a convicted
offender from availing of the benefits of the Probation Law, regardless of the
grounds invoked in the appeal lodged, and of whether or not the appeal resulted in
the downward modification of the offense or the penalty imposed from a non-
probationable to a probationable one.
This reading of the aforequoted proviso, however, has repeatedly been debated
upon in various cases of differing factual settings. 5 And in these cases, the Court
CRIMINAL LAW | PENALTIES
constantly entertained the prospect of abandoning, if not substantially modifying,
this rigid interpretation to allow a penitent offender to apply for probation if he
only became qualified to apply for the benefits under the law after an appellate
court downgraded his offense or the penalty meted.
It will not be until December of 2011, in Colinares v. People,6 when the Court
would take a different posture in interpreting Sec. 4 of PD No. 968, as amended.
In Colinares, the Court was emphatic in its position that the error of a lower
court should not deprive the offender of the opportunity to seek the privilege of
probation. In the words of the ponencia therein, “[a]ng kabayo ang nagkasala,
_______________
4 Francisco v. Court of Appeals, G.R. No. 108747, April 6, 1995, 243 SCRA 384,
386-387.
5 See Colinares v. People, supra note 3; Lagrosa v. People, G.R. No. 152044,
July 3, 2003, 405 SCRA 357; Francisco v. Court of Appeals, id.
6 Id.
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272 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
ang hagupit ay sa kalabaw (The horse errs, the carabao gets the whip).”7 Thus,
in the face of strong dissent, the majority rejected the traditional interpretation of
Sec. 4 and refused to read the provision as prohibiting the offender from applying
for the benefit of probation if the appeal was made when the privilege of probation
is not yet available.8
As held in Colinares, the appellate court’s downward modification of the
penalty meted, from a non-probationable to a probationable one, amounted to
an original conviction for a probationable penalty. Under such circumstance, the
Court held that the offender should still be allowed to apply for the privilege of
probation in spite of his prior perfection of an appeal because the appeal was
made at a time when he was not yet a qualified offender. In other words,
therein offender has not yet lodged an appeal from the original judgment of
conviction of a probationable penalty, qualifying him to apply for probation under
Sec. 4.
Regrettably, several members of the Court remain reluctant in adopting this
novel interpretation in Colinares, continually reasoning that the wording of
the proviso is clear and leaves no room for interpretation, and arguing that the
Probation Law is not a penal statute that must be construed liberally in favor of
the accused.9 As in the case at bar, instead of applying squarely the teaching
in Colinares, the majority deviated therefrom and needlessly imposed additional
restrictions before one could avail of the benefits under the Probation Law.
The ponencia ruled herein that for the accused to be allowed to apply for
probation even if he has filed an appeal, the appeal should be anchored only on the
following grounds:
_______________
P a g e 179 | 279
 7 Id., at p. 279.
8 Id., at p. 280.
9 Francisco v. Court of Appeals, supra note 4 at p. 390.
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Dimakuta vs. People
1. When the appeal is merely intended for the correction of the penalty
imposed by the lower court, which, when corrected, would entitle the accused to
apply for probation; and
2. When the appeal is merely intended to review the crime for which the accused
was convicted and that the accused should only be liable for the lesser offense which
is necessarily included in the crime for which he was originally convicted and the
proper penalty imposable is within the probationable period.
The majority is, in effect, affirming Colinares in making the grant of probation
allowable even after appeal, to which I agree. The similarity between the
interpretations of Sec. 4 in Colinares and in the disposition of this case, however,
ends here. Meanwhile, divergence arises from the varying analysis of the phrase
“appeal from the judgment of conviction,” which is a basis for disqualification under
Sec. 4. Here, the majority puts premium on the grounds invoked in the “appeal”
adverted to, in that the appeal should not question the finding of guilt and should
not insist on the defendant’s acquittal, regardless of the penalty imposed and the
crime the offender is convicted of. In contrast, Colinares deems more significant the
“judgment of conviction,” rendering the grounds the appeal was anchored on
immaterial. Instead, what is of primordial consideration in Colinares was whether
or not the defendant was convicted of a probationable offense or was meted a
probationable penalty. If not, the defendant will still be allowed to appeal his
conviction on any ground, without losing the right to apply for probation in the
event that the appellate court reclassifies his offense or downgrades his sentence
to a probationable one.
Of the two interpretations, I respectfully submit that the Court’s holding
in Colinares should be sustained. Therefore, I register my vote to GRANT the
instant petition.
274
274 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
With all due respect to my colleagues, allow me to express my reservations on
the Court’s imposition of prerequisites before an offender may avail of the benefits
of the Probation Law.
Firstly, the conditions imposed by the majority run counter to the spirit of the
Probation Law.
CRIMINAL LAW | PENALTIES
Recall the wording of the provision:
Sec. 4. Grant of Probation.—Subject to the provisions of this Decree,
the trial court may, after it shall have convicted and sentenced a defendant
and upon application by said defendant within the period for perfecting an
appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may
deem best; Provided, that no application for probation shall be entertained
or granted if the defendant perfected the appeal from the judgment of
conviction.
Sec. 4 clearly commands that “no application for probation shall be entertained
or granted if the defendant perfected the appeal from the judgment of conviction.”
At first blush, there is nothing vague in the provision that calls for judicial
interpretation. The provision, as couched, mandates that the perfection of an
appeal disqualifies an otherwise qualified offender from applying for probation.
Nevertheless, I fully concur with the Court’s ruling in Colinares that the bar
must be applied only to offenders who were already qualified to apply for probation
but opted to file an appeal instead. An otherwise rigid application of the rule would
defeat the very purpose of the Probation Law, which is giving a qualified penitent
offender the opportunity to be placed on probation instead of being incarcerated.
The preambulatory clause of PD No. 1990 says as much:
WHEREAS, it has been the sad experience that persons who are
convicted of offenses and who
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Dimakuta vs. People
may be entitled to probation still appeal the judgment of conviction
even up to the Supreme Court, only to pursue their application for probation
when their appeal is eventually dismissed; x x x. (emphasis ours)
Verily, the clause uses the conjunctive word “and” in qualifying the type of
offenders to whom the amendment applies. Unmistakably, it refers not simply to
convicted offenders in general, but more specifically to qualified convicted
offenders. What PD No. 1990 then contemplates and seeks to address is the
situation where qualified convicted offenders showed lack of repentance by
appealing their conviction instead of admitting their guilt and asking for the State’s
graciousness and liberality by applying for the privilege of probation.
This supports the majority opinion in Colinares that the disqualification under
Sec. 4 does not cover a formerly disqualified convicted offender who later on
becomes qualified to apply for probation by reason of a partially meritorious appeal,
sustaining the conviction but for a lesser offense or penalty. To reiterate, the
reduction of the penalty imposed in Colinares, from a non-probationable to a
probationable one, amounted to an original conviction from which no appeal has
P a g e 180 | 279
yet been taken, and thereby qualifies the convicted felon to apply for probation
under the law.
Unlike this modification in the interpretation of Sec. 4 of PD No. 968 that was
introduced in Colinares, the ponencia’s imposition of additional restrictions for
availing of the benefits under the Probation Law is not in keeping with the spirit
of the law. To recall, the ponencia intimates that the added restrictions are based
on the argument that what is prohibited under the Probation Law is challenging
the judgment of conviction, which, in the majority’s posture, is the finding of guilt,
without distinction on whether the penalty imposed is probationable or not.
According to the majority, the accused may still lodge an appeal and qualify for
probation if the appeal is limited to praying for the reduction of the penalty imposed
or downgrading the crime he is convicted of, and
276
276 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
should in no way insist on his innocence. With these requirements in place, the
majority effectively would want the accused to change his theory of the case and
belatedly plead guilty on appeal to a lesser offense, akin to a last minute plea-
bargain.
The problem here is that the ponencia’s interpretation is tantamount to forcing
the accused to already forego appealing for his acquittal at a time that probation is
not yet available. This goes against the rationale of the law, which seeks to
discourage from appealing only those who are, in the first place, already
qualified to apply for probation, but waste the opportunity by insisting on
their innocence. What is more, the ponencia’s restrictive proposition would lead
to a baffling result — the very appeal that would have qualified the
convicted felon to apply for probation (i.e., the appeal that resulted in the
downgrading of the offense or the reduction of the penalty to a
probationable one) would also be the very same appeal that would
disqualify him from availing thereof.
More on this first point, recall that the Probation Law was enacted for the
following reasons:
WHEREAS, one of the major goals of the government is to establish a
more enlightened and humane correctional system that will promote the
reformation of offenders and thereby reduce the incidence of recidivism;
WHEREAS, the confinement of all offenders in prisons and other
institutions with rehabilitation programs constitutes an onerous drain on
the financial resources of the country; and
WHEREAS, there is a need to provide a less costly alternative to the
imprisonment of offenders who are likely to respond to individualized,
community-based treatment programs;
On the basis thereof, PD No. 968 commands that it shall be interpreted as to:
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Dimakuta vs. People
(a) Promote the correction and rehabilitation of an offender by providing him
with individualized treatment;
(b) Provide an opportunity for the reformation of a penitent offender which
might be less probable if he were to serve a prison sentence; and
(c) Prevent the commission of offenses.10
Now, relate the legislature’s above stated rationale of the Probation Law to the
preambulatory clauses of PD No. 1990, which introduced the amendment removing
the allowance of probation after the already qualified offender appealed his
conviction, to wit:
WHEREAS, it has been the sad experience that persons who are
convicted of offenses and who may be entitled to probation still
appeal the judgment of conviction even up to the Supreme Court,
only to pursue their application for probation when their appeal is
eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution,
conviction and appeal entails too much time and effort, not to mention the
huge expenses of litigation, on the part of the State;
WHEREAS, the time, effort and expenses of the Government in
investigating and prosecuting accused persons from the lower courts up to
the Supreme Court, are oftentimes rendered nugatory when, after the
appellate Court finally affirms the judgment of conviction, the defendant
applies for and is granted probation;
WHEREAS, probation was not intended as an escape hatch and
should not be used to obstruct and delay the administration of
justice, but should be availed of at the first opportunity by
offenders who are willing to be reformed and rehabilitated;
_______________
10 Presidential Decree No. 968, Sec. 2.
278
278 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
WHEREAS, it becomes imperative to remedy the problems above
mentioned confronting our probation system.11 (emphasis ours)
As can be gleaned, the declared purposes of the Probation Law and its
amendatory law all echo the State’s inclination towards a rehabilitative, as opposed
P a g e 181 | 279
to a punitive, system. In fact, the proviso that the perfection of an appeal
disqualifies the offender from applying for probation is to ensure that the privilege
of probation is extended only to penitent qualified offenders, those the state deems
to have the potential to be rehabilitated.
In ascertaining an offender’s penitence, the Court has repeatedly held that the
qualified offender’s perfection of an appeal questioning his conviction, instead of
beseeching the State’s generosity through an application for probation at the first
opportunity, is antithetical to remorse and penitence. Bear in mind, though, that
the amendment was prompted by the State’s past experience where qualified
offenders “wager” their chances and still seek an acquittal, only to invoke the
privilege of probation when it is almost certain that they would not be found
innocent. It would, therefore, be erroneous to apply the same principle to
offenders who are not qualified, those who had no opportunity, to seek
the privilege in the first place. We cannot expect them to immediately show
remorse via applying for probation, putting their right to appeal on the line in so
doing, when they are not even qualified for the privilege under the law. In their
case, there is no wager and no “first opportunity” to apply for probation to speak
off, but a clear lack of option on the part of the offenders. They had no other choice
but to appeal.
Secondly, the majority’s imposition of said conditions is in violation of the
constitutionally-mandated separation of powers underlying the very existence of
the government.
_______________
11 Presidential Decree No. 1990.
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Dimakuta vs. People
Well-entrenched is the rule that the primordial duty of the Court is merely to
apply the law in such a way that it does not usurp legislative powers by judicial
legislation.12 Thus, in the course of such application or construction, it should not
make or supervise legislation, or under the guise of interpretation, modify, revise,
amend, distort, remodel, or rewrite the law, or give the law a construction which is
repugnant to its terms.13 The Court should shy away from encroaching upon the
primary function of a coequal branch of the Government; otherwise, this would lead
to an inexcusable breach of the doctrine of separation of powers by means of judicial
legislation.14
To hold, in the case at bar, that a formerly disqualified offender who only
became qualified for probation after judgment by an appellate court is still
disqualified from applying for the privilege is tantamount to amending the
law via judicial interpretation. With the Court’s disposition of the instant petition,
the majority is effectively placing additional qualifications and grounds for
disqualification that not only cannot be found anywhere in the four corners of the
CRIMINAL LAW | PENALTIES
statute, but, worse, defeat the very purpose for which the Probation Law was
enacted.
Had the Probation Law intended the exclusion of formerly disqualified
offenders from those who may avail of the privilege, then it would have included
such exclusion in the list of disqualified offenders under Sec. 9 of PD No. 968, as
amended, which, in its entirety, reads:
Sec. 9. Disqualified Offenders.—The benefits of this Decree shall not be
extended to those:
(a) sentenced to serve a maximum term of imprisonment of more than
six years;
(b) convicted of subversion or any crime against the national security
or the public order;
_______________
12 Corpuz v. People, supra note 1 at p. 57.
13 Id.
14 Id.
280
280 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
(c) who have previously been convicted by final judgment of an offense
punished by imprisonment of not less than one month and one day and/or a
fine of not less than Two Hundred Pesos;
(d) who have been once on probation under the provisions of this
Decree; and
(e) who are already serving sentence at the time the substantive
provisions of this Decree became applicable pursuant to Section 33 hereof.
These disqualifications listed under Sec. 9 should be differentiated from the
disqualification under Sec. 4. Sec. 9 enumerates the legal bars from acquiring
the eligibility to apply for probation. Meanwhile, the Sec. 4 proviso states
the manner on how one loses the eligibility to apply for probation which he
already possesses. To interpret here then that an offender who is not yet qualified
to apply for probation may be prejudiced by the grounds he would raise in his
appeal would mean amending Sec. 9 so as to include those who have raised their
guilt as an issue on appeal.
This unwarranted judicial amendment to the law violates the fundamental
maxim “expressio unius est exclusio alterius.” The express mention of one person,
thing, act, or consequence excludes all others. Thus, where a statute, by its terms,
is expressly limited to certain matters, it may not, by interpretation or
construction, be extended to others. This rule is based on the premise that the
legislature would not have made specified enumerations in a statute had the
P a g e 182 | 279
intention been not to restrict its meaning and to confine its terms to those expressly
mentioned.15
Moreover, the ponencia, in its postulation, basically legislates the timeframe
for an offender’s penitence. The ponencia
_______________
15 Romualdez v. Marcelo, G.R. Nos. 165510-33, July 28, 2006, 497 SCRA 89,
108.
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Dimakuta vs. People
is virtually sending a message to convicted felons that they should already be
penitent even before they are qualified to apply for probation to be allowed to avail
of the privilege in the off-chance that the penalty meted on them is reduced or the
crime they are convicted of is downgraded on appeal.
We have to consider though that it is only natural for a person charged with a
crime, subjected to a highly adversarial process, and going up against the “People
of the Philippines” in litigation, to be on the defensive and insist on his innocence
rather than readily sacrifice his liberty in gambling for a mere probability of
becoming eligible for, not necessarily entitled to, probation. This does not mean,
however, that he who is guilty but denies the commission of the crime even after
having been convicted by the trial court will never ever regret having committed
the offense. For his perceived lack of option, a litigant may be compelled to appeal
his conviction, without necessarily making him any less repentant later on. It
would not come as a surprise if it will only be after his appeal is heard, after the
penalty imposed upon him is lessened or after his crime was downgraded, after a
window of opportunity to receive a second lease in life opens, would his penitence
be manifest in his pleadings, would he apply for probation, and would he no longer
pursue the case or push his luck.
As explained, insisting on proving one’s innocence is an understandable natural
human behavior. It is not, at all times and in all cases, proof of depravity. In the
same way, the observance of the proposed restrictions, which are supposedly
intended to ensure that only penitent offenders are allowed to apply for the
privilege of probation, cannot guarantee that the person invoking the limited
grounds on appeal is, in fact, remorseful. Furthermore, one cannot expect an
offender to be, in all cases, impelled by remorse in applying for the probation
instead of appealing, for it may be that he sacrificed his right to fight for his
innocence out of fear of losing the privilege if he makes any further attempt thereat.
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282 SUPREME COURT REPORTS ANNOTATED
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Dimakuta vs. People
Fortunately, the grant of the privilege is entirely different from the right to
apply for its grant.16 Consider, too, that the grant is discretionary upon the trial
court, hence the use of the word “may.”17 Thus, there are other means by which the
courts may determine whether the qualified offender is indeed penitent or not,
other than looking to the grounds on which his appeal was hinged. The grounds
raised in the appeal should then be immaterial. And instead of restraining an
erstwhile disqualified offender’s right to appeal, the Court should adopt an effective
system for weeding out those who abuse the State’s generosity. This way, we can
assist in the administration of the restorative justice that the Probation Law seeks
to enforce without sacrificing civil liberties or encroaching upon the power of the
Legislative Branch. To impose such restrictions on the filing of an appeal by the
disqualified convicted offender would, more often than not, result in injustice,
rather than promote the laudable purpose of the Probation Law.
Thirdly, following Colinares, the “judgment of conviction” referred to in Sec. 4
from which no appeal should be taken should, as earlier stressed, be understood to
be the original conviction for a probationable penalty or offense, and not
simply to the trial court’s first finding of guilt.
It may be tempting to interpret the phrase “judgment of conviction” to refer to
the trial court’s finding of guilt since “trial court” was specifically mentioned in Sec.
4, without any reference to appellate courts. This, however, does not come as a
shock. The trial court’s mention, after all, comes naturally
_______________
16 Colinares v. People, supra note 3 at p. 278.
17 Section 4, PD No. 968, as amended, provides: “Subject to the provisions of
this Decree, the trial court may, after it shall have convicted and sentenced a
defendant and upon application by said defendant within the period for perfecting
an appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may deem best;
x x x.” (emphasis ours)
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since, as the court of origin,18 the suspension of the execution of the sentence
and the placing of the defendant on probation are just a few of its functions. The
first part of Sec. 4, thus, merely echoes the rule that the execution of
judgments19 and the resolution of an application for probation20 are the duties of
the trial courts, nothing more. It should not be construed in such a way that the
appeal being referred to in said Sec. 4 is that taken only from the trial court to an
appellate court as this is an entirely different matter.
To be clear, nowhere in the Probation Law does it provide that the “appeal”
from the judgment of conviction should be that made from the trial court to the
P a g e 183 | 279
appellate court. Hence, the “appeal” could very well refer to any of the three (3)
opportunities to seek a review of a judgment of conviction in criminal procedure:
(a) questioning the judgments of the Municipal Trial Court, Metropolitan Trial
Court, Municipal Circuit Trial Court, and of the Municipal Trial Court in Cities
_______________
18 Section 1. Execution upon judgments or final orders.—Execution shall
issue as a matter of right, on motion, upon a judgment or order that disposes of the
action or proceeding upon the expiration of the period to appeal therefrom if no
appeal has been duly perfected.
If the appeal has been duly perfected and finally resolved, the execution may
forthwith be applied for in the court of origin, on motion of the judgment oblige,
submitting therewith certified true copies of the judgment or judgments or final
order or orders sought to be enforced and of the entry thereof, with notice to the
adverse party.
The appellate court may, on motion in the same case when, the interest of
justice so requires, direct the court of origin to issue the writ of execution. (Rules of
Court, Rule 39)
19 See Rules of Court, Rule 39, Sec. 1.
20 See Section 3, PD 968. Meaning of Terms.—x x x
(a) “Probation” is a disposition under which a defendant, after conviction and
sentence, is released subject to conditions imposed by the court and to the
supervision of a probation officer. (emphasis ours)
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before the Regional Trial Court; (b) elevating the case from the Regional Trial
Court to the Court of Appeals; and (c) by assailing the unfavorable Decision of the
Court of Appeals to this Court — the court of last resort.21
Corollarily, it is submitted that the “judgment of conviction” should not be
taken to mean the initial finding of guilt, since, as maintained by the majority
in Colinares, an original judgment of conviction may also be handed down by the
appellate courts, especially when it involves the annulment or modification of the
trial court’s decision. As discussed, the appellate court’s judgment convicting
therein defendant, for the first time, of a probationable crime or imposing upon him
a probationable penalty should be treated as an original conviction, entitling
him to apply for probation in spite of perfecting an appeal.22 The appeal lodged by
the offender, which reduced his conviction to a probationable one, in no way
adversely affected his later-acquired eligibility.
In line with the teachings in Colinares, the Court should view the appellate
court’s judgment which effectively qualified the offender for probation
as the conviction from which the defendant should not appeal from if he
wishes to apply for the privilege of probation. This should be the case for the
simple reason that he has not yet questioned this second original conviction which
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qualifies him for probation. To reiterate, what the law proscribes is the application
for probation by a defendant who has appealed his conviction for a probationable
crime or with a probationable penalty. This proscription should, therefore, come in
only when the offender has already been convicted of a probationable crime or
imposed a probationable penalty, not when he was still disqualified for probation.
Fourthly, the adoption of the conditions set by the majority in the instant case
will result in a situation where We
_______________
21 Revised Rules of Criminal Procedure, Rule 122, Section 2.
22 Colinares v. People, supra note 3 at p. 280.
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would be requiring from the defense lawyer a degree of diligence that is less
than that expected of him under our Rules, at his client’s expense.
To elucidate, We are all very much aware of a defense lawyer’s duty to his client
in that:
x x x A lawyer engaged to represent a client bears the responsibility of
protecting the latter’s interest with utmost diligence. It is his duty to serve
his client with competence and diligence, and he should exert his best efforts
to protect, within the bounds of the law, the interests of his client. A lawyer’s
diligence and vigilance is more imperative in criminal cases, where the life
and liberty of an accused is at stake.23
Simply put, a defense lawyer is expected to advocate his client’s
innocence in line with the principle deeply embedded in our legal system
that an accused is presumed innocent until proven guilty beyond
reasonable doubt. The lawyer owes “entire devotion to the interest of the client,
warm zeal in the maintenance and defense of his rights and the exertion of his
utmost learning and ability,” to the end that nothing be taken or be withheld from
the latter, save by the rules of law, legally applied. 24 Thus, unless and until his
client has been convicted with finality, we cannot expect his counsel to detract, or
even require him to detract from this duty, and convince his client to simply admit
guilt and either seek a reduction of the penalty imposed or the downgrading of the
crime he has been convicted of just so the client may have a window of opportunity
to apply for the privilege of probation if and only if the appeal is granted. Instead,
the client, in the judicial forum, should be afforded the benefit of any and every
_______________
23 Mattus v. Villaseca, A.C. No. 7922, October 1, 2013, 706 SCRA 477, 484.
24 Regala v. Sandiganbayan, First Division, G.R. Nos. 105938 & 108113,
September 20, 1996, 262 SCRA 122, 140.
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Dimakuta vs. People
remedy and defense that is authorized by the law of the land, and he may expect
his lawyer to assert every such remedy or defense.25
Lastly, in rejecting the petitioner’s plea that the Probation Law be liberally
construed in his favor, the Court ruled that PD 968 is not a penal law that would
warrant the application of the pro reo doctrine. The ruling was premised on the
instruction of the Court in Llamado v. Court of Appeals, viz.:
Turning to petitioner’s invocation of “liberal interpretation” of penal
statutes, we note at the outset that the Probation Law is not a penal statute.
We, however, understand petitioner’s argument to be really that any
statutory language that appears to favor the accused in a criminal case
should be given a “liberal interpretation.” Courts, however, have no
authority to invoke “liberal interpretation” or “the spirit of the law” where
the words of the statute themselves, and as illuminated by the history of
that statute, leave no room for doubt or interpretation. We do not believe
that “the spirit of law” may legitimately be invoked to set at naught words
which have a clear and definite meaning imparted to them by our
procedural law. The “true legislative intent” must obviously be given effect
by judges and all others who are charged with the application and
implementation of a statute. It is absolutely essential to bear in mind,
however, that the spirit of the law and the intent that is to be given effect
are to be derived from the words actually used by the lawmaker, and not
from some external, mystical or metajuridical source independent of and
transcending the words of the legislature.
The Court is not here to be understood as giving a “strict interpretation”
rather than a “liberal” one to Section 4 of the Probation Law of 1976 as
amended by P.D. No. 1990. “Strict” and “liberal” are adjectives which too
frequently impede a disciplined and principled search for the meaning
which the lawmaking authority projected
_______________
25 Id.
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Dimakuta vs. People
when it promulgated the language which we must apply. That meaning
is clearly visible in the text of Section 4, as plain and unmistakable as the
nose on a man’s face. The Court is simply reading Section 4 as it is in fact
written. There is no need for the involved process of construction that
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petitioner invites us to engage in, a process made necessary only because
petitioner rejects the conclusion or meaning which shines through the words
of the statute. The first duty of a judge is to take and apply a statute as he
finds it, not as he would like it to be.26
This oft-cited ratio in supporting the continued refusal to reject the proposed
application of Sec. 4, however, must also be reconsidered since this cited
pronouncement of the Court actually deals with a different issue, albeit pertaining
to the same provision.
It bears noting that Llamado dealt with the issue of whether or not petitioner’s
application for probation, which was filed after a notice of appeal had been filed
with the trial court, after the records of the case had been forwarded to the Court
of Appeals, after the Court of Appeals had issued the notice to file Appellant’s Brief,
after several extensions of time to file Appellant’s Brief had been sought from and
granted by the Court of Appeals, but before actual filing of such brief, is barred
under PD No. 968, as amended.27 In essence, it dealt with the alleged
establishment by the amendment of a narrower period during which an application
for probation may be filed with the trial court. As the Court clarified:
In applying Section 4 in the form it exists today (and at the time
petitioner Llamado was convicted by the trial court), to the instant case, we
must then inquire whether petitioner Llamado had submitted his
application for probation “within the period for perfecting an ap-
_______________
26 Llamado v. Court of Appeals, G.R. No. 84850, June 29, 1989, 174 SCRA 566,
577-578.
27 Id., at p. 576.
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Dimakuta vs. People
peal.” Put a little differently, the question is whether by the time
petitioner Llamado’s application was filed, he had already
“perfected an appeal” from the judgment of conviction of the
Regional Trial Court of Manila.28 (emphasis ours)
A reading of Llamado reveals that the Court’s refusal to liberally interpret Sec.
4 actually referred to the phrase “period for perfecting an appeal” and not
the proviso being discussed in the present case. It was therein petitioner’s
argument that:
x x x the phrase “period for perfecting an appeal” and the clause “if the
defendant has perfected an appeal from the judgment of conviction” found
in Section 4 in its current form, should not be interpreted to refer to Rule
P a g e 185 | 279
 122 of the Revised Rules of Court; and that the “whereas” or preambulatory
clauses of P.D. No. 1990 did not specify a period of fifteen (15) days for
perfecting an appeal. It is also urged that “the true legislative intent of the
amendment (P.D. No. 1990) should not apply to petitioner who filed his
Petition for probation at the earliest opportunity then prevailing and
withdrew his appeal.”29
which the Court flatly rejected for the ensuing reason:
We find ourselves unable to accept the eloquently stated arguments of
petitioner’s counsel and the dissenting opinion. We are unable to
persuade ourselves that Section 4 as it now stands, in authorizing
the trial court to grant probation “upon application by [the]
defendant within the period for perfecting an appeal” and in
reiterating in the proviso that:
no application for probation shall be entertained or granted if
the defendant has
_______________
28 Id., at p. 574.
29 Id., at p. 575.
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Dimakuta vs. People
perfected an appeal from the judgment of conviction.
did not really mean to refer to the fifteen-day period
established, as indicated above, by B.P. Blg. 129, the Interim Rules
and Guidelines Implementing B.P. Blg. 129 and the 1985 Rules on
Criminal Procedure, but rather to some vague and undefined
time, i.e., “the earliest opportunity” to withdraw the defendant’s
appeal. The whereas clauses invoked by petitioner did not, of course, refer
to the fifteen-day period. There was absolutely no reason why they should
have so referred to that period for the operative words of Section 4 already
do refer, in our view, to such fifteen-day period. x x x x Upon the other hand,
the term “period for perfecting an appeal” used in Section 4 may be seen to
furnish specification for the loose language “first opportunity” employed in
the fourth whereas clause. “Perfection of an appeal” is, of course, a term of
art but it is a term of art widely understood by lawyers and judges and
Section 4 of the Probation Law addresses itself essentially to judges and
lawyers. “Perfecting an appeal” has no sensible meaning apart from
the meaning given to those words in our procedural law and so the
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lawmaking agency could only have intended to refer to the meaning
of those words in the context of procedural law.30 (emphasis ours)
With the above, it is evident that when this Court pronounced in Llamado its
refusal to liberally apply Sec. 4 of the Probation Law, as amended, it was doing so
within the context of interpreting the phrase “period for perfecting an appeal,”
which, as we all know, has a definite meaning in procedural law. It is therefore,
understandable why the Court, in Llamado, rejected therein petitioner’s request
for a liberal interpretation of the phrase.
_______________
30 Id., at pp. 576-577.
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In conclusion, it is simply incorrect for the Court to interpret Sec. 4 as
prohibiting the defendant from arguing for his acquittal at a time that the privilege
of probation is not yet available to him. To follow the ponencia’s interpretation
would lead to a scenario wherein the Court would be
subjecting disqualified offenders to the requirements of applying for probation in
spite of their patent ineligibility (by reason of the penalty imposed or the
categorization of the offense).
The more precise interpretation, therefore, would be to grant this
opportunity to apply for probation when the accused is originally
convicted for a probationable offense or sentenced to suffer a
probationable penalty, without distinction on whether the said “original
conviction” was issued by the trial court or appellate court. What is
material is that the application for the privilege of probation be made at the first
opportunity, which is the period to appeal from when the offender first
became qualified for the privilege. For how can we say that the convicted
offender wagered for an acquittal on appeal instead of applying for probation when
he is not qualified to avail of the benefits of the Probation Law in the first place?
He simply had no other option at that point.
As in Colinares, petitioner in this case became qualified for probation only after
the appellate court modified the trial court’s ruling. If, notwithstanding this
downward modification of the penalty imposed or the crime the accused
is convicted of, the now qualified defendant still appeals his new
conviction on whatever ground, then, this would be the time when his
appeal would bar him from applying for the privilege under Sec. 4.
While it is true that there is a risk that the abuse of the State’s generosity by
convicted offenders may still persist because of Colinares, we should not, however,
deprive all accused persons, whether guilty or not, the opportunity to defend
themselves and their liberty and to prove their case, lest we run the risk of forcing
innocent persons to forego their
P a g e 186 | 279
 Bibit, and PO1 Toledo I. Mauricio, Jr., as its witnesses. The defense, on the other
hand, presented Mustapha and Allan Dimakuta to substantiate its claim of his
291 innocence. Mustapha denied the accusation and claimed that AAA merely
VOL. 773, OCTOBER 20, 2015 291 concocted the charge against him just so that she could have a reason to leave their
house where she worked as a domestic helper and be reunited with her family in
Dimakuta vs. People the province.
liberty simply because applying for probation is easier than proving their On September 3, 2008, the RTC rendered its Decision,4 finding Mustapha
innocence. To me, this might, more often than not, result in a failure of justice guilty as charged, and meted out the penalty of ten (10) years of prisión mayor, as
rather than its administration. minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
In view of the foregoing disquisitions, I reiterate my vote to GRANT the instant temporal, as maximum, with the accessory penalty of perpetual absolute
petition. disqualification. Further, Mustapha was ordered to pay a fine of P25,000.00; civil
indemnity of P25,000.00; and moral damages of P25,000.00.
DISSENTING OPINION Not satisfied, Mustapha appealed the RTC judgment of conviction before the
CA claiming that the trial court egregiously erred in declaring him guilty of
MENDOZA, J.: violating Section 5(b), Article III of R.A. No. 7610. He faulted the trial court for
giving undue faith and credence to the testimony of AAA, contending that it was
In this petition for review on Certiorari, petitioner Mustapha laced with inconsistencies and improbabilities, tainting the veracity of her charge.
Dimakuta y Maruhom @ Boyet (Mustapha) seeks to reverse and set aside the He argued that even assuming that he indeed touched the breasts and vagina of
September 3, 20121 and March 13, 20132 Resolutions of the Court of Appeals AAA, still there was no concrete prosecution evidence showing that the said
(CA), in C.A.-G.R. CR No. 31963, which denied his motion that he be entitled to lascivious act was committed through force, duress, intimidation or violence and,
probation. hence, his conviction under R.A. No. 7610 was erroneous. He added that he could
In the decision of the majority, the petition reversed its ruling in Colinares v. not be convicted of Acts of Lasciviousness under Article 336 of
People3 and denied the subject petition. _______________
With due respect to the learned ponente of the case, I dissent.
4 Penned by Judge Joselito Vibandor; Rollo, pp. 33-43.
The Antecedents:

Petitioner Mustapha was charged with the offense of Violation of Section 5(b),
Article III of Republic Act (R.A.) No. 7610, otherwise known as the Special
Protection of Children against Child Abuse, Exploitation and Discrimination Act,
filed before the Regional Trial Court, Branch 199, Las Piñas City, (RTC)
_______________
1 Penned by Associate Justice Myrna V. Garcia-Fernandez, with Associate
Justices Vicente S.E. Veloso and Stephen C. Cruz, concurring; Rollo, pp. 26-29.
2 Id., at p. 31.
3 678 Phil. 482; 662 SCRA 266 (2011).
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292 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
docketed therein as Criminal Case No. 05-1098, for committing a lascivious
conduct upon a 16-year-old complainant.
To prove its accusation, the prosecution presented private complainant AAA,
Department of Social Welfare and Development Social Worker (DSWD) Arleen
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293
VOL. 773, OCTOBER 20, 2015 293
Dimakuta vs. People
the Revised Penal Code (RPC) either as the prosecution failed to establish the
essential elements of the said crime.
In its Appellee’s Brief,5 the Office of the Solicitor General (OSG) averred that
the RTC was correct in lending weight and credence to the testimony of AAA and
that the alleged inconsistencies in her testimony pertained merely on minor details
and did not negate the commission of the sexual molestation. The OSG, however,
was of the view that Mustapha should have been convicted of Acts of
Lasciviousness only under Article 336 of the RPC and not for Violation of Section
5(b), Article III of R.A. No. 7610 because the prosecution failed to prove that the
lascivious conduct was committed through coercion or intimidation.6
In its June 28, 2012 Decision,7 the CA agreed with the
OSG and modified the judgment of the RTC and convicted Mustapha for Acts of
Lasciviousness only under Article 336 of the RPC explaining that coercion or
intimidation, the second element of the crime of violation of Section 5(b), Article III
of R.A. No. 7610, was wanting in Criminal Case No. 05-1098. According to the CA,
the evidence on record revealed that AAA was asleep at the time the sexual abuse
P a g e 187 | 279
happened and only awoke when she felt her breasts being mashed and her vagina
being touched. The CA noted that after being roused from sleep, AAA immediately
put on some clothes and rushed out of her room, leaving Mustapha behind, and
locked herself in the stockroom.
The CA added that there was no showing that Mustapha compelled AAA, or
cowed her into silence to bear his sexual assault. Neither was there evidence that
she had the time to manifest conscious lack of consent or resistance to Mustapha’s
_______________
5 Id., at pp. 77-1114.
6 Id., at pp. 102-107.
7 Penned by Associate Justice Myra V. Garcia-Fernandez, with Associate
Justices Vicente S.E. Veloso and Stephen C. Cruz, concurring; id., at pp. 117-130.
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294 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
assault. It stressed that the lascivious acts imputed to him had taken place
while private complainant was in deep slumber or unconscious, under almost the
same factual circumstances as in the case of People v. Abello,8 where the accused
was found guilty beyond reasonable doubt of the crime of Acts of Lasciviousness,
defined and penalized under Article 336 of the RPC instead of the charge of
violation of Section 5(b), Article III of R.A. No. 7610. The CA justified its ruling that
Mustapha’s conviction under Article 336 of the RPC was proper for the reasons
that: 1) the recital of ultimate facts and circumstances in the Information
constituted acts of lasciviousness; and 2) the evidence adduced by the prosecution
established beyond reasonable doubt his guilt of the said crime. The dispositive
portion of the CA decision reads:
WHEREFORE, the Decision appealed from is MODIFIED. Accused-
appellant Mustapha Dimakuta y Maruhom alias “Boyet” is found GUILTY
of acts of lasciviousness, defined and penalized under ARTICLE 336 of the
REVISED PENAL CODE, as amended and he is sentenced to the
indeterminate penalty of SIX (6) MONTHS of arresto mayor, as minimum,
to FOUR (4) YEARS and TWO (2) MONTHS of prisión correccional, as
maximum. Accused-appellant is likewise ordered to pay the private
complainant TWENTY THOUSAND PESOS (P20,000.00) as civil
indemnity and THIRTY THOUSAND PESOS (P30,000.00) as moral
damages.
SO ORDERED.9
Instead of moving for reconsideration, Mustapha filed on July 23, 2012, a
manifestation with motion10 before the CA praying that he be allowed to apply for
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probation under Presidential Decree (P.D.) No. 968 upon its remand to the trial
court for execution. He placed reliance on the Court’s
_______________
8 601 Phil. 373; 582 SCRA 378 (2009).
9 Rollo, pp. 129-130.
10 Id., at pp. 132-142.
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Dimakuta vs. People
ruling in Colinares where the accused was allowed to apply for probation under
the reduced penalty imposed on appeal. Mustapha contended that he should not be
prejudiced by the erroneous judgment of the RTC which convicted him with the
wrong crime and sentenced him with a penalty beyond the coverage of the
Probation Law. He submitted that the Probation Law must be liberally construed
in favor of the accused.
In its first assailed Resolution, dated September 3, 2012, the CA denied due
course to Mustapha’s manifestation with motion, holding that the Colinares case
was not on all fours with the present case. The CA explained that in Colinares case,
the petitioner raised as sole issue the correctness of the penalty imposed and
claimed that the evidence at best warranted a conviction for a lesser offense of
attempted homicide; while Mustapha never assailed the propriety of the penalty
meted out against him and, in fact, questioned the findings of facts and conclusions
drawn by the RTC based on the evidence adduced by the prosecution. It held that
the ruling in Lagrosa v. People11 is more at point. In said case, it was held that the
petitioners therein were precluded from seeking probation after taking a
guiltlessness stance and put in issue the merits of their conviction on appeal. The
CA, thus, adjudged as follows:
WHEREFORE, the Manifestation with Motion to Allow Accused-
Appellant to Apply for Probation under Presidential Decree No. 968 is
DENIED.
SO ORDERED.12
Mustapha moved for reconsideration, but his motion was denied in the second
assailed Resolution, dated March 13, 2013.
Hence, this petition.
_______________
11 453 Phil. 270; 405 SCRA 357 (2003).
12 Rollo, p. 29.
P a g e 188 | 279
 296
296 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
Ground
THE COURT OF APPEALS’ DENIAL OF THE PETITIONER’S RIGHT
TO APPLY FOR PROBATION [AS IT DID] NOT QUESTION THE
PROPRIETY OF THE PENALTY UPON APPEAL, IS CONTRARY TO THE
DECIDED CASE OF ARNEL COLINARES V. PEOPLE.13
The threshold issue that begs an answer from this Court is whether or not
Mustapha has the right to apply for probation under the new penalty imposed by
the CA which is within the probationable limit.
Mustapha posits that he can still avail of the benefits of probation under P.D.
No. 968, as amended by P.D. No. 1990, despite having appealed the September 3,
2008 RTC decision because the opportunity to apply for probation came into being
only upon his conviction by the CA of the crime of Acts of Lasciviousness and the
imposition of a lesser penalty which fell within the probationable level.
By way of Comment14 to the petition, the OSG counters that Mustapha’s right
to apply for probation was lost when he perfected his appeal from the RTC
judgment of conviction. It argues that the perfection of an appeal is a
relinquishment of the alternative remedy of availing the Probation Law because
appeal and probation are mutually exclusive remedies which rest on diametrically
opposed legal positions. The OSG submits that the Colinares case is not squarely
applicable in the case at bench because Mustapha never admitted guilt and did not
limit the issue on the correctness of the penalty meted out by the trial court.
I am of the view that the petition is impressed with merit.
_______________
13 Id., at p. 14.
14 Id., at pp. 169-182.
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Dimakuta vs. People
Probation is not a right of an accused but a mere privilege, an act of grace and
clemency or immunity conferred by the State, which is granted to a deserving
defendant who thereby escapes the extreme rigors of the penalty imposed by law
for the offense of which he was convicted.15 In recent jurisprudence, it has been
clarified that while the convicted offender has no right to such privilege,
nevertheless, he has the right to apply for that privilege, 16 provided that he is not
disqualified from availing the benefits of probation.
To properly understand the current application of the Probation Law, a brief
review of its history is but appropriate. As originally promulgated on July 24, 1976,
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P.D. No. 968 allowed the filing of an application for probation even if an appeal had
been perfected by the convicted offender. When the law was later amended by P.D.
No. 1257 on December 1, 1977, the filing of an application for probation pending
appeal was still allowed and, in fact, fixed the period to the point just “before he
begins to serve his sentence.” With the subsequent amendment of Section 4 of P.D.
No. 968 by P.D. No. 1990, however, the application for probation is no longer
allowed if the accused has perfected an appeal from the judgment of conviction.
Section 4 of the Probation Law now reads:
Sec. 4. Grant of Probation.—Subject to the provisions of this Decree,
the trial court may, after it shall have convicted and sentenced a defendant
and upon application by said defendant within the period for perfecting an
appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may
deem best; Provided, that no application for probation shall be
entertained or granted if the defendant has perfected an appeal
from the judgment of conviction.
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15 Moreno v. Commission on Elections, 530 Phil. 279, 290; 498 SCRA 547, 560
(2006).
16 Colinares v. People, supra note 3 at p. 497.
298
298 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with
the trial court. The filing of the application shall be deemed a waiver of the
right to appeal.
An order granting or denying probation shall not be appealable.
The reason underlying the amendment was amply articulated in the
preambulatory clauses of P.D. No. 1990, thus:
WHEREAS, it has been the sad experience that persons who are
convicted of offenses and who may be entitled to probation still appeal the
judgment of conviction even up to the Supreme Court, only to pursue their
application for probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution,
conviction and appeal entails too much time and effort, not to mention the
huge expenses of litigation, on the part of the State;
WHEREAS, the time, effort and expenses of the Government in
investigating and prosecuting accused persons from the lower courts up to
the Supreme Court, are oftentimes rendered nugatory when, after the
P a g e 189 | 279
 appellate Court finally affirms the judgment of conviction, the defendant
applies for and is granted probation.
xxxx
In Almero v. People,17 the Court stated that the Probation Law was amended
“precisely to put a stop to the practice of appealing from judgments of conviction —
even if the sentence is probationable — for the purpose of securing an acquittal and
applying for the probation only if the accused fails in his bid.” In Sable v.
People,18 the Court elucidated that the requirement that an accused must not have
appealed his
_______________
17 G.R. No. 188191, March 12, 2014, 718 SCRA 698.
18 602 Phil. 989, 997; 584 SCRA 619, 627 (2009).
299
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Dimakuta vs. People
conviction before he can avail of probation, outlaws the element of speculation
on the part of the accused — to wager on the result of his appeal — that when his
conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and
the service of his sentence inevitable, he now applies for probation as an “escape
hatch,” thus, rendering nugatory the appellate court’s affirmance of his conviction.
Resultantly, under Section 4 of P.D. No. 968 as amended, the accused is given
the choice of appealing his sentence or applying for probation. If he appeals,
he cannot later apply for probation. If he opts for probation, he cannot appeal.
Going back to the case at bench, I am of the considered view that Mustapha can
apply for probation. Mustapha, just like the petitioner in the Colinares case, did
not have a choice between appeal and probation when the trial court
convicted him of a wrong offense. The trial court’s erroneous conviction of
Mustapha for Violation of Section 5(b), Article III of R.A. No. 7610 and the
imposition of a prison term of ten (10) years of prisión mayor, as minimum, to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as
maximum, deprived him of the choice to pursue an application for probation
considering that the maximum probationable imprisonment under the Probation
Law was only up to six (6) years.
In the Colinares case, the petitioner was convicted by the trial court of
Frustrated Homicide and sentenced him to suffer imprisonment from two (2) years
and four (4) months of prisión correccional, as minimum, to six (6) years and one
(1) day of prisión mayor, as maximum, but later, on appeal, this Court found him
guilty only of Attempted Homicide, and sentenced him to suffer an indeterminate
penalty from four (4) months of arresto mayor, as minimum, to two (2) years and
four (4) months of prisión correccional, as maximum. Verily, because of the stiff
penalties imposed against both Mustapha and Arnel Colinares by the trial courts,
they had no way of
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300
300 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
obtaining relief except by appealing their respective judgments.
In the Colinares case, the Court resolved that it is but fair to allow the
petitioner the right to apply for probation under the reduced penalty upon remand
of the case to the RTC. I see no reason why the case of Mustapha should be treated
differently considering that his sentence was reduced by the CA to an
indeterminate penalty of six (6) months of arresto mayor, as minimum to four (4)
years and two (2) months of prisión correccional, as maximum. By appealing the
merits of the case, together with the conformity of the OSG, the CA found Mustapha
guilty only of the crime of Acts of Lasciviousness with a penalty well within the
probationable period.
It bears stressing that the evil of speculation and opportunism on the part of
the accused sought to be curbed by the amendment in P.D. No. 1990 was not
present in the case at bench inasmuch as the penalty imposed by the RTC against
Mustapha was not probationable at the outset. Besides, nowhere in the amendatory
decree does it state or even hint that in limiting the accused to the choice of either
appealing from the decision of the trial court or applying for probation, the purpose
is to deny him of the right to apply for probation in cases like the one at bench
where he became eligible for probation only because his sentence was reduced on
appeal. To repeat, the purpose of the amendment is simply to prevent speculation
or opportunism on the part of the accused who, although already eligible for
probation, does not at once apply for probation, but did so only after failing in his
appeal.19
The CA explained that in the Colinares case, the petitioner therein raised as
sole issue the correctness of the penalty imposed while the OSG contends that
the Colinares case is not squarely applicable to present case because Mustapha
_______________
19 Francisco v. Court of Appeals, 313 Phil. 241, 264; 243 SCRA 384, 396-397
(1995).
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Dimakuta vs. People
never admitted guilt and did not limit the issue on appeal to the correctness of
the penalty meted out by the trial court.
These arguments are specious.
Firstly, in the Colinares case, the accused therein did not only question the
correctness of the penalty, but also the merits of the case by arguing that he should
be exonerated due to the presence of the justifying circumstance of self-defense.
P a g e 190 | 279
The Court did not agree with his defense but nevertheless found him guilty of a
lesser offense of attempted homicide with a probationable penalty. Just like in this
case, Mustapha appealed the merits of the case by questioning the appreciation of
evidence of the trial court.
Secondly, it cannot be said with absolute certainty that the sole and exclusive
motivation of Mustapha for lodging the appeal was his desire to be acquitted. Proof
of this is that after Mustapha was found guilty by the CA of acts of lasciviousness
and sentenced to a lesser penalty which thereby qualified him for probation, he did
not appeal further although he could have done so. What he did, instead, was to
accept the new sentence and seek a declaration from the CA that he is entitled to
apply for probation upon remand of the case to the RTC for execution. This shows
that he is willing to accept the conviction of crime, albeit for a lower penalty.
Thirdly, regardless of whether an accused appealed the merits of the case or
simply the correctness of the penalty imposed, the Court should not distinguish
insofar as the application of the Probation Law is concerned. The Court cannot
expect Mustapha to forgo the remedy of appeal and admit guilt over a crime he did
not commit due to an erroneous appreciation of the merits of the case. He should
not accept the erroneous judgment of the RTC for, in truth, he only committed Acts
of Lasciviousness with a maximum penalty of four (4) years and two (2) months.
Mustapha should not be made to suffer through the forfeiture of the right to apply
for probation simply because the RTC had blundered. In the Colinares case, it was
written:
302
302 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
The Probation Law never intended to deny an accused his right to
probation through no fault of his. The underlying philosophy of probation is
one of liberality towards the accused. Such philosophy is not served by a
harsh and stringent interpretation of the statutory provisions. As Justice
Vicente V. Mendoza said in his dissent in Francisco, the Probation Law
must not be regarded as a mere privilege to be given to the accused only
where it clearly appears he comes within its letter; to do so would be to
disregard the teaching in many cases that the Probation Law should be
applied in favor of the accused not because it is a criminal law but to achieve
its beneficent purpose.
There are views that Mustapha should not be allowed to apply for probation
anchored on the following grounds:
1] the Colinares case should not be made to apply to this case because it is not
yet an established doctrine and the pronouncements therein were not supported by
the text of the Probation Law; and
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2] even if the ratiocination in the Colinares case is sound, still, it finds no
application in the case at bench inasmuch as the CA erred in modifying the
judgment of the RTC.
I disagree.
Adherence to the Colinares case is dictated by this Court’s policy of securing
and maintaining certainty and stability of judicial decisions in accordance with the
legal maxim stare decisis et non quieta movere (or simply, stare decisis which
means “follow past precedents and do not disturb what has been settled”). The
principle, entrenched under Article 820 of the Civil Code, evokes the general rule
that, for the sake of
_______________
20 Article 8. Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines.
303
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Dimakuta vs. People
certainty, a conclusion reached in one case should be doctrinally applied to
those that follow if the facts are substantially the same, even though the parties
may be different.21 Otherwise stated, once a point of law has been established by
the Court, that point of law will, generally, be followed by the same court and by
all courts of lower rank in subsequent cases where the same legal issue is raised.
Stare decisis proceeds from the first principle of justice that, absent powerful
countervailing considerations, like cases ought to be decided alike.22 Hence, where,
as in this case, the same question relating to the same event have been put forward
by parties similarly situated as in a previous case litigated and decided by a
competent court, the rule of stare decisis is a bar to any attempt to relitigate the
same issue.23 Significantly, the respondent has not shown any strong and
compelling reason to persuade the Court that the manner of disposition
in Colinares v. People pertaining to the matter of probation should not be observed
and adopted in the case at bench.
Anent the second ground, suffice it to state that the June 28, 2012 Decision of
the CA convicting Mustapha for Acts of Lasciviousness became final and executory
only upon the failure of either party to question the decision. On the other hand,
after Mustapha received a copy of the aforesaid decision on July 6, 2012, he did not
further appeal the same to this Court. Instead, he filed before the CA on July 23,
2012, a manifestation with motion to allow him to apply for probation upon remand
of the case to the trial court for execution. To review the correctness of the final and
executory June 28,
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21 Belgica v. Ochoa, Jr., G.R. No. 208566, November 19, 2013, 710 SCRA 1,
101-102.
P a g e 191 | 279
 22 Ayala Corporation v. Rosa-Diana Realty and Development Corporation, 400 The accused touched the breast and vagina of a 16-year-old minor.
Phil. 511, 521; 346 SCRA 663, 671 (2000). The Court of Appeals failed to appreciate that this would not have been possible
23 Chinese Young Men’s Christian Association of the Philippine Islands v. without intimidation or coercion. It lowered the penalty from a minimum
Remington Steel Corporation, 573 Phil. 320, 337; 550 SCRA 180, 197-198 (2008). imprisonment of ten (10) years2 to a minimum imprisonment of six (6) months. 3 If
the Decision of the Court of Appeals is upheld, he will not serve a single day in
prison for his acts. This is not what the law requires. This is definitely not what it
intends.
304 Probation and appeal are mutually exclusive remedies. Probation is a mere
304 SUPREME COURT REPORTS ANNOTATED privilege granted only to offenders who are willing to be reformed and
rehabilitated. It cannot be availed of when an offender has already perfected his or
Dimakuta vs. People
her appeal from the judgment of conviction.
2012 Decision of the CA at this point is no longer permissible in the light of the
Generally, after a finding of fact by a trial court of the guilt of an accused beyond
constitutional interdict against double jeopardy.
reasonable doubt, society is entitled to the expectation that he or she serve his or
Not surprisingly, the OSG did not question the decision anymore as it
her sentence. In this sense, probation is a mere privilege: an exception granted to
conformed to its own recommendation that the petitioner should be found guilty of
a general rule that is both reasonable and just.
Acts of Lasciviousness only.24
I submit that Colinares v. People4 should not be made to apply to this case for
Let it be underscored that the primodial consideration of this Court in allowing
two reasons. First, Colinares has not yet
the petitioner in the Colinares case to apply for probation was one of fairness. Here,
_______________
considering that the sentence of the RTC against Mustapha was modified by the
CA to a probationable range upon recommendation of the OSG, and that he is not
1 “Let justice be done though the heavens fall.”
one of those disqualified offenders under Section 9 of P.D. No. 968 as amended, he
2 Ponencia, p. 245. The Regional Trial Court sentenced petitioner to
should not be denied his right to apply for probation in the spirit of fairness. To
imprisonment of ten (10) years prisión mayor as minimum to seventeen (17) years,
rule otherwise would send Mustapha straight to jail and, thus, robbing him of the
four (4) months and one (1) day reclusion temporal as maximum.
chance to undergo reformation and rehabilitation as a penitent offender, defeating
3 Ponencia, p. 246. The Court of Appeals lowered the penalty to imprisonment
the avowed purpose and objective of the Probation Law.
of six (6) months arresto mayor as minimum to four (4) years and two (2)
IN VIEW OF ALL THE FOREGOING, I recommend that the petition
months prisión correccional as maximum.
be GRANTED; that the assailed September 3, 2012 and March 13, 2013
4 678 Phil. 482; 662 SCRA 266 (2011) [Per J. Abad, En Banc].
Resolutions of the Court of Appeals (CA) in C.A.-G.R. CR No. 31963
be REVERSED and SET ASIDE; and that petitioner Mustapha
Dimakuta y Maruhom @ Boyet be declared as entitled to apply for probation within
fifteen (15) days from notice that the record of the case has been remanded for 306
execution to the Regional Trial Court of Las Piñas City, Branch 199, in Criminal
Case No. 05-1098. 306 SUPREME COURT REPORTS ANNOTATED
_______________ Dimakuta vs. People
become established doctrine, and the dissents of the case offer a sound and
24 Rollo, p. 102. logical approach to the issue. Colinares read an outcome, which is not supported by
the text of law. Second, even assuming that the ratio in Colinares is good law, it
finds no application to this case since the Court of Appeals erred in modifying the
judgment of the trial court.
305
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Dimakuta vs. People
Probation was first established in this jurisdiction through Act No. 42215 dated
CONCURRING OPINION
August 7, 1935. According to the provisions of the Act, those who have not been
convicted of any offense punishable by death or life imprisonment6 may be placed
LEONEN, J.:
under probation after the sentence becomes final and before the offender begins the
service of sentence.7
Fiat justitia ruat caelum.1
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CRIMINAL LAW | PENALTIES P a g e 192 | 279
 5 An Act Establishing Probation for Persons, Eighteen Years of Age or Above,
Convicted of Certain Crimes by the Courts of the Philippine Islands; Providing
Probation Officers Therefor; and for Other Purposes.
6 Act No. 4221 (1935), Sec. 8 provides:
SECTION 8. This Act shall not apply to persons convicted of offenses
punishable by death or life imprisonment; to those convicted of homicide, treason,
conspiracy or proposal to commit treason; to those convicted of misprision of
treason, sedition or espionage; to those convicted of piracy, brigandage, arson, or
robbery in band; to those convicted of robbery with violence on persons when it is
found that they displayed a deadly weapon; to those convicted of corruption of
minors; to those who are habitual delinquents; to those who have been once on
probation; and to those already sentenced by final judgment at the time of the
approval of this Act.
7 Act No. 4221 (1935), Sec. 1 provides:
SECTION 1. Whenever any person eighteen years of age or more at the time
of committing a criminal offense or misdemeanor is convicted and sentenced by a
Court of First Instance or by the Supreme Court on appeal, for such offense or
misdemeanor, the proper Court of First Instance may after the sentence has
become final and before the defendant has begun the service thereof, suspend the
execution of said sentence and place the defendant on probation for
307
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Dimakuta vs. People
The current law on probation is Presidential Decree No. 968,8 which was signed
into law on July 24, 1976. An accused was originally allowed to apply for probation
before the trial court even pending appeal, as long as notice was given to the Court
of Appeals where the appeal was pending.9 According to Section 4 of the Decree:
SECTION 4. Grant of Probation.—Subject to the provisions of this
Decree, the court may, after it shall have convicted and sentenced a
defendant and upon application at any time of said defendant, suspend the
execution of said sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem best.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with
the trial court, with notice to the appellate court if an appeal has been taken
from the sentence of conviction. The filing of the application shall be deemed
a waiver of the right to appeal, or the automatic withdrawal of a pending
appeal.
An order granting or denying probation shall not be appealable.
(Emphasis supplied)
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The Decree, however, declared that probation cannot be availed of by the
following offenders:
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such period as it may determine not less nor exceeding the minimum and
maximum periods prescribed in this Act. No person, however, shall be placed on
probation until an investigation and report by the probation officer shall have been
made to the court of the circumstances of his offense, his criminal record, if any,
and his social history and until the provincial fiscal shall have been given an
opportunity to be heard. The court shall enter in the minutes the reasons for its
action.
8 Establishing a Probation System, Appropriating Funds Therefor and for
Other Purposes.
9 Pres. Decree No. 968 (1976), Sec. 4.
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308 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
SECTION 9. Disqualified Offenders.—The benefits of this Decree
shall not be extended to those:
(a) sentenced to serve a maximum term of imprisonment of more than
six years;
(b) convicted of subversion or any crime against the national security
or the public order;
(c) who have previously been convicted by final judgment of an offense
punished by imprisonment of not less than one month and one day and/or a
fine of not less than Two Hundred Pesos;
(d) who have been once on probation under the provisions of this
Decree; and
(e) who are already serving sentence at the time the substantive
provisions of this Decree became applicable pursuant to Section 33 hereof.10
Section 4 of the Decree was amended twice: first, by Presidential Decree No.
1257 on December 1, 1977, and again, by Presidential Decree No. 1990 on October
5, 1985.
The amendments of Presidential Decree No. 1257 increased the period when an
application for probation may be granted, thus:
Section 1. Section 4 of Presidential Decree No. 968, otherwise known
as the Probation Law of 1976, is hereby amended to read as follows:
“Sec. 4. Grant of Probation.—Subject to the provisions of this
Decree, the court may, after it shall have convicted and sentenced a
defendant but before he begins to serve his sentence and upon his
application, suspend the execu-
_______________
P a g e 193 | 279
 10 This section was amended by Batas Pambansa Blg. 76 dated June 13, 1980
to include offenders sentenced to imprisonment of six years and one day. This
amendment, however, was repealed by Presidential Decree No. 1990 in 1985, which
restored the original text of Section 9 in Presidential Decree No. 968.
309
VOL. 773, OCTOBER 20, 2015 309
Dimakuta vs. People
tion of said sentence and place the defendant on probation for
such period and upon such terms and conditions as it may deem best.
The prosecuting officer concerned shall be notified by the court
of the filling [sic] of the application for probation and he may submit
his comment on such application within ten days from receipt of the
notification.
Probation may be granted whether the sentence impose a term
of imprisonment or a fine with subsidiary imprisonment in case of
insolvency. An application for probation shall be filed with trial
court, with notice to appellate court if an appeal has been taken from
the sentence of conviction. The filling [sic] of the application shall be
deemed a waiver of the right to appeal, or the automatic withdrawal
of a pending appeal. In the latter case[,] however, if the application is
filed on or after the date of the judgment of the appellate court, said
application shall be acted upon by the trial court on the basis of the
judgment of the appellate court.
An order granting or denying probation shall not be appealable.”
(Emphasis supplied)
In 1985, however, a substantial amendment was made to the Probation Law,
which categorically prohibited applications for probation if the appeal has been
perfected:
WHEREAS, it has been the sad experience that persons who are
convicted of offenses and who may be entitled to probation still appeal the
judgment of conviction even up to the Supreme Court, only to pursue their
application for probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution,
conviction and appeal entails too much time and effort, not to mention the
huge expenses of litigation, on the part of the State;
310
310 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
WHEREAS, the time, effort and expenses of the Government in
investigating and prosecuting accused persons from the lower courts up to
CRIMINAL LAW | PENALTIES
the Supreme Court, are oftentimes rendered nugatory when, after the
appellate Court finally affirms the judgment of conviction, the defendant
applies for and is granted probation;
WHEREAS, probation was not intended as an escape hatch and should
not be used to obstruct and delay the administration of justice, but should be
availed of at the first opportunity by offenders who are willing to be reformed
and rehabilitated;
WHEREAS, it becomes imperative to remedy the problems above
mentioned confronting our probation system;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution, do
hereby decree:
SECTION 1. Section 4 of Presidential Decree No. 968 is hereby
amended to read as follows:
“SEC. 4. Grant of Probation.—Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said defendant
within the period for perfecting an appeal, suspend the execution of
the sentence and place the defendant on probation for such period
and upon such terms and conditions as it may deem best; Provided,
That no application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment of
conviction.
“Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with
the trial court. The filing of the application shall be deemed a waiver of the
right to appeal.
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Dimakuta vs. People
“An order granting or denying probation shall not be appealable.”11 (Emphasis
supplied)
Thus, the present law makes an appeal and an application for probation
mutually exclusive remedies. An accused who has been sentenced to a penalty of
less than six (6) years of imprisonment may only apply for probation if he or she
has not yet perfected his or her appeal from the judgment of conviction. There are
no exceptions to the rule in the text of the law. The intent to make the choices
exclusive from each other is seen in the context of the history of the amendments to
this law.
The amendment to Section 4 of the Probation Law has also been the subject of
several cases before this court. Two cases, in particular, established the following
principles:
P a g e 194 | 279
 1. The Probation Law is not a penal statute that may be interpreted liberally
in favor of the accused; and
2. Section 4 of the Probation Law clearly mandates that no application for
probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction.
The first of these cases applied Section 4 as it is stated in the law, effectively
ruling that the law does not admit exceptions. In Llamado v. Court of
Appeals,12 Ricardo A. Llamado (Llamado) was convicted by the trial court of
violation of Batas Pambansa Bilang 22 and sentenced to imprisonment of one (1)
year of prisión correccional.13
After the decision had been read to him, Llamado orally manifested before the
trial court that he was taking an appeal. The trial court forwarded the records of
the case to the
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11 Pres. Decree No. 1990 (1985).
12 256 Phil. 328; 174 SCRA 566 (1989) [Per J. Feliciano, Third Division].
13 Id., at p. 332; pp. 569-570.
312
312 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
Court of Appeals on the same day. Llamado received notices from the Court of
Appeals to file his Appellant’s Brief, to which he secured several extensions. 14
While his Appellant’s Brief was being finalized by his counsel on record,
Llamado sought advice from another lawyer.15 Heeding the advice of his new
counsel, he filed before the trial court a Petition for Probation under the Probation
Law.16 The Petition was not accepted by the trial court as “the records of [his] case
had already been forwarded to the Court of Appeals.”17 Llamado then filed a
Manifestation and Petition for Probation before the Court of Appeals, asking it to
grant his Petition or, in the alternative, to remand the Petition to the trial court
along with the records of the case.18 While the Petition was pending before the
Court of Appeals, he filed a Manifestation and Motion formally withdrawing his
appeal “conditioned . . . on the approval of his Petition for Probation.”19
The Court of Appeals denied the Petition, which prompted Llamado to file a
Petition for Review before this court, on the sole issue of whether his application
for probation was filed after he had already perfected his appeal.20
This court, however, affirmed the Court of Appeals and ruled that Llamado
already perfected his appeal when he orally manifested in open court his intention
to appeal.21 As such, he cannot be allowed to apply for probation by virtue of Section
4 of Presidential Decree No. 968, as amended by Presidential Decree No.
1990.22 This court was also hesitant to
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14 Id.
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15 Id.
16 Id., at pp. 332-333; p. 570.
17 Id., at p. 333; p. 571.
18 Id.
19 Id.
20 Id., at pp. 333-334; p. 571.
21 Id., at p. 337; p. 575.
22 Id., at pp. 337-339; p. 571.
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Dimakuta vs. People
liberally interpret Section 4 of Presidential Decree No. 968 since the Decree
was not a penal statute.23 The court stated:
Turning to petitioner’s invocation of “liberal interpretation” of penal
statutes, we note at the outset that the Probation Law is not a penal statute.
We, however, understand petitioner’s argument to be really that any
statutory language that appears to favor the accused in a criminal case
should be given a “liberal interpretation.” Courts, however, have no
authority to invoke “liberal interpretation” or “the spirit of the law” where the
words of the statute themselves, and as illuminated by the history of that
statute, leave no room for doubt or interpretation. We do not believe that “the
spirit of law” may legitimately be invoked to set at naught words which have
a clear and definite meaning imparted to them by our procedural law. The
“true legislative intent” must obviously be given effect by judges and all
others who are charged with the application and implementation of a
statute. It is absolutely essential to bear in mind, however, that the spirit
of the law and the intent that is to be given effect are to be derived from the
words actually used by the lawmaker, and not from some external, mystical
or metajuridical source independent of and transcending the words of the
legislature.
The Court is not here to be understood as giving a “strict” interpretation”
rather than a “liberal” one to Section 4 of the Probation Law of 1976 as
amended by P.D. No. 1990. “Strict” and “liberal” are adjectives which too
frequently impede a disciplined and principled search for the meaning which
the lawmaking authority projected when it promulgated the language which
we must apply. That meaning is clearly visible in the text of Section 4, as
plain and unmistakable as the nose on a man’s face. The Court is simply
reading Section 4 as it is in fact written. There is no need for the involved
process of construction that petitioner invites us to engage in, a process made
necessary only because petitioner rejects the conclusion or
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23 Id., at p. 339; p. 577.
P a g e 195 | 279
 314
314 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
meaning which shines through the words of the statute. The first duty of
a judge is to take and apply a statute as he finds it, not as he would like it
to be. Otherwise, as this Court in Yangco v. Court of First Instance of
Manila warned, confusion and uncertainty in application will surely follow,
making, we might add, stability and continuity in the law much more
difficult to achieve[.]24 (Emphasis supplied)
The issue of whether an application for probation is allowed after the perfection
of an appeal was again taken up by this court in Francisco v. Court of Appeals.25
In Francisco, Pablo C. Francisco (Francisco) was convicted by the Metropolitan
Trial Court of four (4) counts of grave oral defamation and sentenced to
imprisonment of “one (1) year and one (1) day to one (1) year and eight (8) months
of prisión correccional ‘in each crime committed on each date of each case[.]’”26 On
appeal before the Regional Trial Court, the trial court affirmed his conviction but
appreciated a mitigating circumstance in his favor. His penalty was reduced to a
straight penalty of eight (8) months of imprisonment. This Decision became final
and executory upon his failure to file an appeal. Before the Decision could be
executed, however, he applied for probation before the Metropolitan Trial Court.
His application was denied, as was his subsequent Petition for Certiorari before the
Court of Appeals.27
Francisco then brought a Petition before this court, arguing that “he [had] not
yet lost his right to avail [himself] of probation[.]”28 He argued that the judgment
of the Metropolitan Trial Court was such that he could not be qualified for proba-
_______________
24 Id., at pp. 339-340; pp. 577-578.
25 313 Phil. 241; 243 SCRA 384 (1995) [Per J. Bellosillo, En Banc].
26 Id., at p. 251; p. 387.
27 Id., at p. 252; p. 388.
28 Id., at p. 254; p. 389.
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tion, which was precisely the reason for his appeal, so that he could avail
himself of the benefits of probation.29
This court, speaking through Justice Bellosillo, denied his Petition and ruled
that Francisco was no longer eligible for probation.30 This court stated that:
CRIMINAL LAW | PENALTIES
Probation is a mere privilege, not a right. Its benefits cannot extend to
those not expressly included. Probation is not a right of an accused, but
rather an act of grace and clemency or immunity conferred by the state which
may be granted by the court to a seemingly deserving defendant who thereby
escapes the extreme rigors of the penalty imposed by law for the offense of
which he stands convicted. It is a special prerogative granted by law to a
person or group of persons not enjoyed by others or by all. Accordingly, the
grant of probation rests solely upon the discretion of the court which is to be
exercised primarily for the benefit of organized society, and only incidentally
for the benefit of the accused. The Probation Law should not therefore be
permitted to divest the state or its government of any of the latter’s
prerogatives, rights or remedies, unless the intention of the legislature to this
end is clearly expressed, and no person should benefit from the terms of the
law who is not clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which clearly
mandates that “no application for probation shall be entertained or granted
if the defendant has perfected the appeal from the judgment of conviction,”
nor Llamado v. Court of Appeals which interprets the quoted provision,
offers any ambiguity or qualification. As such, the application of the law
should not be subjected to any to suit the case of petitioner. While the
proposition that an appeal should not bar the accused from applying for
probation if the appeal is solely to reduce the penalty to within the
probationable limit may be equitable, we are not yet prepared to accept this
interpre-
_______________
29 Id.
30 Id.
316
316 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
tation under existing law and jurisprudence.31 (Emphasis supplied)
Moreover, this court ruled that the penalties imposed by the Metropolitan Trial
Court were already probationable since “the sum of the multiple prison terms
imposed against an applicant should not be determinative of his [or her] eligibility
for, nay his [or her] disqualification from, probation.”32 It also pointed out that
Francisco appealed his conviction before the Regional Trial Court not to reduce his
penalty to make him eligible for probation but “to assert his innocence.”33
Justice V. V. Mendoza, however, took exception to the majority view and voted
to reverse the judgment of the Court of Appeals.34 In his Dissenting Opinion, he
stated that:
P a g e 196 | 279

[I]f under the sentence given to him an accused is not qualified for
probation, as when the penalty imposed on him by the court singly or in their
totality exceeds six (6) years but on appeal the sentence is modified so that he
becomes qualified, I believe that the accused should not be denied the benefit
of probation.
Before its amendment by P.D. No. 1990, the law allowed — even
encouraged — speculation on the outcome of appeals by permitting the
accused to apply for probation after he had appealed and failed to obtain an
acquittal. It was to change this that Sec. 4 was amended by
_______________
31 Id., at pp. 254-255; pp. 389-390, citing Baclayon v. Mutia, 214 Phil. 126, 131;
129 SCRA 148, 153-154 (1984) [Per J. Teehankee, First Division]; Amandy v.
People, 244 Phil. 457, 465; 161 SCRA 436, 443 (1988) [Per J. Gutierrez, Jr., Third
Division], 34 Words and Phrases 111, Bala v. Martinez, 260 Phil. 488, 498-499; 181
SCRA 459, 465 (1990) [Per J. Sarmiento, Second Division], and Llamado v. Court
of Appeals, supra note 12 at pp. 334-337; p. 573.
32 Id., at p. 258; p. 392.
33 Id., at p. 262; p. 396.
34 J. Mendoza, Dissenting Opinion in Francisco v. Court of
Appeals, supra note 25 at p. 267; p. 401.
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Dimakuta vs. People
P.D. No. 1990 by expressly providing that “no application for probation
shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction.” For an accused, despite the fact that he is
eligible for probation, may be tempted to appeal in the hope of obtaining an
acquittal if he knows he can any way apply for probation in the event his
conviction is affirmed.
There is, however, nothing in the amendatory Decree to suggest that in
limiting the accused to the choice of either appealing from the decision of the
trial court or applying for probation, the purpose is to deny him the right to
probation in cases like the one at bar where he becomes eligible for probation
only because on appeal his sentence is reduced. The purpose of the
amendment, it bears repeating, is simply to prevent speculation or
opportunism on the part of an accused who, although eligible for probation,
does not at once apply for probation, doing so only after failing in his
appeal.35 (Emphasis supplied, citations omitted)
Justice V. V. Mendoza also submitted that the original sentence imposed
on Francisco should be taken in its totality to determine whether he was qualified
CRIMINAL LAW | PENALTIES
for probation.36 In his opinion, the policy of the law treats “multiple sentences
imposed in cases which are jointly tried and decided37 as only one sentence.
Justice Vitug also offered a Separate Opinion, in that he agreed with Justice V.
V. Mendoza that an accused originally not qualified for probation must not be
denied the benefit of probation if on appeal, the sentence was reduced within the
probationable period.38 He, however, concurred with the ma-
_______________
35 Id., at pp. 268-272; p. 404.
36 Id., at pp. 275-276; p. 407.
37 Id., at p. 276; p. 407.
38 J. Vitug, Separate Opinion in Francisco v. Court of Appeals, supra note 25
at pp. 277-278; p. 392.
318
318 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
jority that “the number of offenses is immaterial as long as all the penalties
imposed, taken separately, are within the probationable period.”39
The exception suggested by Justice V. V. Mendoza, i.e., that the accused should
be allowed to apply for probation if an originally unprobationable offense is reduced
to a probationable one on appeal, would ultimately become this court’s ratio
in Colinares.
With all due respect, Colinares does not apply to this case.
II
In Colinares, the accused, Arnel Colinares (Colinares), was found guilty by the
Regional Trial Court of frustrated homicide. He was sentenced to an indeterminate
penalty of two (2) years and four (4) months of prisión correccional as minimum to
six (6) years and one (1) day of prisión mayor as maximum.40
Colinares appealed before the Court of Appeals invoking self-defense. He also
alternatively sought conviction for the lesser crime of attempted homicide. The
Court of Appeals denied his appeal which prompted him to file a Petition for Review
before this court.41
During the pendency of the case, this court required Colinares and the Office of
the Solicitor General to submit their respective positions on whether, assuming
that Colinares was only guilty of the lesser crime of attempted homicide, “he could
still apply for probation upon remand of [this] case to the trial court.” 42 Colinares
argued that he was eligible while the Office of the Solicitor General argued for his
ineligibility.43
_______________
39 Id., at p. 278; p. 392.
40 Colinares v. People, supra note 4 at p. 491; p. 273.
P a g e 197 | 279
 41 Id.
42 Id., at p. 492; p. 273.
43 Id.
319
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Dimakuta vs. People
This court eventually ruled that Colinares was only guilty of attempted
homicide which was punishable by imprisonment of four (4) months of arresto
mayor as minimum and two (2) years and four (4) months of prisión correccional as
maximum.44 This court also found Colinares eligible for probation despite having
appealed his conviction.45 The Decision, penned by Justice Abad, stated that the
accused should not be denied the right of probation if it was through the fault of
the trial court that he did not have a chance to apply for probation:
. . . Arnel did not appeal from a judgment that would have allowed him
to apply for probation. He did not have a choice between appeal and
probation. He was not in a position to say, “By taking this appeal, I choose
not to apply for probation.” The stiff penalty that the trial court imposed on
him denied him that choice. Thus, a ruling that would allow Arnel to now
seek probation under this Court’s greatly diminished penalty will not dilute
the sound ruling in Francisco. It remains that those who will appeal from
judgments of conviction, when they have the option to try for probation,
forfeit their right to apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of correctness of the
penalty imposed on him. He claimed that the evidence at best warranted his
conviction only for attempted, not frustrated, homicide, which crime called
for a probationable penalty. In a way, therefore, Arnel sought from the
beginning to bring down the penalty to the level where the law would allow
him to apply for probation.
In a real sense, the Court’s finding that Arnel was guilty, not of
frustrated homicide, but only of attempted homicide, is an original
conviction that for the first time imposes on him a probationable penalty.
Had the RTC done him right from the start, it would have found him
_______________
44 Id., at p. 501; p. 273.
45 Id.
320
320 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
CRIMINAL LAW | PENALTIES
guilty of the correct offense and imposed on him the right penalty of two
years and four months maximum. This would have afforded Arnel the right
to apply for probation.
The Probation Law never intended to deny an accused his right to
probation through no fault of his. The underlying philosophy of probation is
one of liberality towards the accused. Such philosophy is not served by a
harsh and stringent interpretation of the statutory provisions. As Justice
Vicente V. Mendoza said in his dissent in Francisco, the Probation Law
must not be regarded as a mere privilege to be given to the accused only
where it clearly appears he comes within its letter; to do so would be to
disregard the teaching in many cases that the Probation Law should be
applied in favor of the accused not because it is a criminal law but to achieve
its beneficent purpose.46 (Emphasis supplied)
This Decision by the court was contentious in the least, with this court’s En
Banc voting 9-647 in favor of the ponencia and with Justice Peralta and Justice
Villarama offering their Separate Opinions.
_______________
46 Id., at pp. 499-500; pp. 280-281, citing Yusi v. Morales, 206 Phil. 734, 740;
121 SCRA 853, 858 (1983) [Per J. Gutierrez, Jr., First Division] and J. Mendoza,
Dissenting Opinion in Francisco v. Court of Appeals, supra note 25 at p. 273; p. 405.
47 Former Chief Justice Renato C. Corona and Associate Justices Antonio T.
Carpio, Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Mariano C. Del
Castillo, Jose P. Perez, Jose C. Mendoza, and Bienvenido L. Reyes, concurred in
the ponencia. Associate Justices Diosdado M. Peralta and Martin S. Villarama, Jr.,
dissented. Associate Justices Arturo D. Brion, Lucas P. Bersamin, Ma. Lourdes P.
A. Sereno (now Chief Justice), and Estela M. Perlas-Bernabe joined in the dissents.
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Dimakuta vs. People
With all due respect, Justice Villarama, Jr. correctly stated in Colinares that
an application of liberality in the interpretation of Section 4 is “misplaced.” 48
It is a settled principle of statutory construction that only penal statutes are
construed liberally in favor of the accused.49 It is also equally settled that the
Probation Law is not a penal statute.50 The provisions of the law, including Section
4, should be interpreted as stated, which is that once an appeal has been perfected
by the accused, he or she is not anymore entitled to the benefits of probation.
The Probation Law intends to benefit only penitent offenders, or those who
admit to their offense and are willing to undergo rehabilitation. According to
Section 2 of the Probation Law:
Section 2. Purpose.—This Decree shall be interpreted so as to:
(a) promote the correction and rehabilitation of an offender by
providing him with individualized treatment;
P a g e 198 | 279
 (b) provide an opportunity for the reformation of a penitent offender
which might be less probable if he were to serve a prison sentence; and
(c) prevent the commission of offenses.
Moreover, the law was amended precisely to prohibit those offenders from
taking advantage of the benefits of the Probation Law when their appeals for
innocence are rendered fu-
_______________
48 J. Villarama, Jr., Concurring and Dissenting Opinion in Colinares v.
People, supra note 4 at p. 512; p. 284.
49 See People v. Ladjaalam, 395 Phil. 1, 35; 340 SCRA 617, 649 (2000)
[Per J. Panganiban, Third Division], citing People v. Atop, 349 Phil. 825, 839; 286
SCRA 157, 170 (1998) [Per J. Panganiban, En Banc] and People v. Deleverio, 352
Phil. 382, 404; 289 SCRA 547, 566 (1998) [Per J. Vitug, En Banc].
50 See Llamado v. Court of Appeals, supra note 12 at p. 339; p. 577.
322
322 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
tile. The first Whereas clause of Presidential Decree No. 1990 states:
WHEREAS, it has been the sad experience that persons who are
convicted of offenses and who may be entitled to probation still appeal the
judgment of conviction even up to the Supreme Court, only to pursue their
application for probation when their appeal is eventually dismissed.
It is thus abhorrent to the intention of the law if those who have appealed their
convictions, i.e., those who asked the court to review their convictions in the hope
of securing an acquittal, are still allowed to apply for probation.
In these situations, the privilege of probation becomes an “escape hatch”51 for
those whose appeals were found unmeritorious. In Sable v. People, et al.:52
The law expressly requires that an accused must not have appealed his
conviction before he can avail himself of probation. This outlaws the element
of speculation on the part of the accused — to wager on the result of his
appeal — that when his conviction is finally affirmed on appeal, the moment
of truth well nigh at hand and the service of his sentence inevitable, he now
applies for probation as an “escape hatch,” thus rendering nugatory the
appellate court’s affirmance of his conviction. Consequently, probation
should be availed of at the first opportunity by convicts who are willing to be
reformed and rehabilitated; who manifest spontaneity, contrition and
remorse.
This was the reason why the Probation Law was amended, precisely to
put a stop to the practice of appealing from judgments of conviction even if
the sentence is probationable, for the purpose of securing an acquittal
_______________
CRIMINAL LAW | PENALTIES
51 Sable v. People, 602 Phil. 989, 997; 584 SCRA 619, 627 (2009) [Per J. Chico-
Nazario, Third Division].
52 Id.
323
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Dimakuta vs. People
and applying for the probation only if the accused fails in his
bid.53 (Emphasis supplied)
Similarly, Justice Villarama stated in his Separate Opinion in Colinares that:
It must be stressed that in foreclosing the right to appeal his conviction
once the accused files an application for probation, the State proceeds from
the reasonable assumption that the accused’s submission to rehabilitation
and reform is indicative of remorse. And in prohibiting the trial court from
entertaining an application for probation if the accused has perfected his
appeal, the State ensures that the accused takes seriously the privilege or
clemency extended to him, that at the very least he disavows criminal
tendencies. Consequently, this Court’s grant of relief to herein accused whose
sentence was reduced by this Court to within the probationable limit, with a
declaration that accused may now apply for probation, would diminish the
seriousness of that privilege because in questioning his conviction accused
never admitted his guilt. It is of no moment that the trial court’s conviction
of petitioner for frustrated homicide is now corrected by this Court to only
attempted homicide. Petitioner’s physical assault on the victim with intent
to kill is unlawful or criminal regardless of whether the stage of commission
was frustrated or attempted only. Allowing the petitioner the right to apply
for probation under the reduced penalty glosses over the fact that accused’s
availment of appeal with such expectation amounts to the same thing:
speculation and opportunism on the part of the accused in violation of the
rule that appeal and probation are mutually exclusive
remedies.54 (Emphasis supplied)
_______________
53 Id., at p. 997; p. 627, citing Francisco v. Court of Appeals, supra note 25 at
p. 250; p. 386 and People v. Evangelista, 324 Phil. 80, 85-86; 253 SCRA 714, 719
(1996) [Per J. Mendoza, Second Division].
54 J. Villarama, Jr., Concurring and Dissenting Opinion in Colinares v.
People, supra note 4 at pp. 511-512; pp. 292-293.
324
P a g e 199 | 279
324 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
The underlying theory, therefore, of the amendment to Section 4 is that the
grant of probation to an accused whose sentence was reduced must proceed from
an accused’s remorse and willingness to undergo rehabilitation, which is
antithetical to the filing of an appeal to seek the reversal of his or her conviction.
A more lenient approach was offered by Justice Peralta in Colinares. He was
more open to finding exceptions to the rule and was of the opinion that what Section
4 of the Probation Law prohibited are only appeals from the judgment of
conviction.55 He opined that probation, even after one’s filing of the notice of appeal,
should be allowed in the following instances:
1. When the appeal is merely intended for the correction of the penalty
imposed by the lower court, which when corrected would entitle the accused
to apply for probation; and
2. When the appeal is merely intended to review the crime for which
the accused was convicted and that the accused should only be liable to the
lesser offense which is necessarily included in the crime for which he was
originally convicted and the proper penalty imposable is within the
probationable period.56 (Emphasis in the original)
Justice Peralta stated that in these instances, the appeal is intended to
question only the propriety of the penalty imposed, rather than review the merits
of the case.57 He believed, however, that probation should not be granted in the
following instances:
1. When the accused is convicted by the trial court of a crime where the
penalty imposed is within the proba-
_______________
55 J. Peralta, Dissenting and Concurring Opinion in Colinares v. People, id.,
at p. 506; p. 281.
56 Id., at p. 507; p. 288.
57 Id., at p. 508; p. 289.
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Dimakuta vs. People
tionable period or a fine, and the accused files a notice of appeal; and
2. When the accused files a notice of appeal which puts the merits of
his conviction in issue, even if there is an alternative prayer for the
correction of the penalty imposed by the trial court or for a conviction to a
CRIMINAL LAW | PENALTIES
lesser crime, which is necessarily included in the crime in which he was
convicted where the penalty is within the probationable period.58 (Emphasis
and underscoring in the original)
This case is one of the instances mentioned by Justice Peralta wherein an
application of Colinares would violate the spirit and intent of the law.
The facts state that petitioner appealed his conviction before the Court of
Appeals on the basis that the trial court erred in giving credence to the victim’s
testimony as it was laced with inconsistencies and improbabilities. He argued that
even if he did commit lascivious conduct against the victim, he still should not be
charged with violation of Article 336 of the Revised Penal Code since the
prosecution failed to establish the essential elements of the crime. This is
tantamount to an assertion of his innocence.59
For him to still be eligible for probation, his appeal should have argued that the
trial court erred in finding him guilty of violation of Republic Act No. 7610 since
his offense was merely acts of lasciviousness.
The first appeal determines whether he comes under the exception.
Petitioner’s appeal before the Court of Appeals was made for the purpose of
securing an acquittal; it was not for the purpose of lowering his penalty to one
within the probationable period. To allow him to apply for probation would be to
_______________
58 Id., at p. 509; p. 290.
59 Ponencia, p. 260.
326
326 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
disregard the intent of the law: that appeal and probation are mutually
exclusive remedies.
III
Even assuming that the ratio in Colinares is sound, it finds no application in
this case simply because the Court of Appeals erroneously modified the offense.
Petitioner had been convicted by the trial court of violation of Article III,
Section 5(b) of Republic Act No. 7610 for allegedly molesting a 16-year-old girl. The
provision states:
Section 5. Child Prostitution and Other Sexual Abuse.—Children,
whether male or female, who for money, profit, or any other consideration
or due to the coercion or influence of any adult, syndicate or group, indulge
in sexual intercourse or lascivious conduct, are deemed to be children
exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion
perpetua shall be imposed upon the following:
P a g e 200 | 279
 .... 63 Ponencia, p. 245.
(b) Those who commit the act of sexual intercourse or lascivious 64 Id.
conduct with a child exploited in prostitution or subject to other sexual
abuse; Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for 328
rape or lascivious conduct, as the case may be; Provided, That the penalty 328 SUPREME COURT REPORTS ANNOTATED
for lascivious conduct when the victim is under twelve (12) years of age shall
Dimakuta vs. People
be reclusion temporal in its medium period[.]
of acts of lasciviousness under Article 336 of the Revised Penal Code. 65 The
provision states:
ARTICLE 336. Acts of Lasciviousness.—Any person who shall commit any
327
act of lasciviousness upon other persons of either sex, under any of the
VOL. 773, OCTOBER 20, 2015 327 circumstances mentioned in the preceding article, shall be punished by prisión
Dimakuta vs. People correccional.
In Garingarao v. People,60 the elements of this offense are as follows:
The Court of Appeals, however, erred in modifying the offense. According
1. The accused commits the act of sexual intercourse or lascivious
to Navarrete v. People,66 the elements of Article 336 of the Revised Penal Code are:
conduct;
2. The said act is performed with a child exploited in prostitution or
subjected to other sexual abuse; and
(1) The offender commits any act of lasciviousness or lewdness;
3. The child, whether male or female, is below 18 years of age.61
(2) It is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise
Lascivious conduct is defined as:
unconscious; or
c. When the offended party is under 12 years of age; and
[T]he intentional touching, either directly or through clothing, of the
(3) The offended party is another person of either sex.67 (Emphasis supplied)
genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction
of any object into the genitalia, anus or mouth, of any person, whether of
the same or opposite sex, with the intent to abuse, humiliate, harass,
In the first place, it is illogical for the Court of Appeals to have found the offense
degrade, or arouse or gratify the sexual desire of any person, bestiality,
committed with force or intimidation and, at the same time, without coercion or
masturbation, lascivious exhibition of the genitals or pubic area of a
intimidation. Second, the fact that the victim in this case was a minor who was
person.62
molested by an adult is enough to prove that the victim’s free will was subdued in
view of her minority and immaturity. The
_______________
Here, petitioner is accused of touching the breast and vagina of a 16-year-old
girl.63 On appeal, however, the Court of Appeals modified the offense, finding that
the prosecution failed to prove that the lascivious conduct was done with coercion 65 Id., at p. 246.
or intimidation.64 It found petitioner to be guilty only 66 542 Phil. 496; 513 SCRA 509 (2007) [Per J. Corona, First Division].
_______________ 67 Id., at p. 506; p. 517, citing People v. Bon, 444 Phil. 571, 583-584; 396 SCRA
506, 511 (2003) [Per J. Ynares-Santiago, En Banc].
60 669 Phil. 512; 654 SCRA 243 (2011) [Per J. Carpio, Second Division].
61 Id., at p. 523; pp. 253-254, citing Olivarez v. Court of Appeals, 503 Phil. 421,
431; 465 SCRA 465, 473 (2005) [Per J. Ynares-Santiago, First Division]. 329
62 Id., citing Olivarez v. Court of Appeals, id., at pp. 431-432; p. 473
VOL. 773, OCTOBER 20, 2015 329
[Per J. Ynares-Santiago, First Division], citing in turn Implementing Rules and
Regulations of Rep. Act No. 7610 (1992), Art. XIII, Sec. 32. Dimakuta vs. People

CRIMINAL LAW | PENALTIES P a g e 201 | 279

 moral ascendancy of the adult offender was enough to intimidate the minor
victim. In Garingarao:
The Court has ruled that a child is deemed subject to other sexual abuse when
the child is the victim of lascivious conduct under the coercion or influence of any
adult. In lascivious conduct under the coercion or influence of any adult, there must
be some form of compulsion equivalent to intimidation which subdues the free
exercise of the offended party’s free will.68 (Emphasis supplied)
Thus, petitioner was correctly found by the trial court guilty of violation of
Article III, Section 5(b) of Republic Act No. 7610. Since this offense is punishable
by reclusion temporal or an imprisonment of more than six (6) years, petitioner is
not eligible for probation.
Accordingly, I concur with the ponencia.
Petitioner denied the benefit of Probation Law.
Notes.—Section 11 of the Probation Law provides that the commission of
another offense shall render the probation order ineffective. (Suyan vs. People, 729
SCRA 1 [2014])
As probation is a mere discretionary grant, petitioner was bound to observe full
obedience to the terms and conditions pertaining to the probation order or run the
risk of revocation of this privilege. (Id.)
——o0o——
_______________
G.R. No. 186412. September 7, 2011.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ORLITO
VILLACORTA, accused-appellant.
Witnesses; The determination by the trial court of the credibility of witnesses,
when affirmed by the appellate court, is accorded full weight and credit as well as
great respect, if not conclusive effect.—It is fundamental that the determination by
the trial court of the credi-
_______________
** Designated as an additional member in lieu of Associate Justice Jose
Catral Mendoza, per Raffle dated July 19, 2010.
*** Designated as an additional member in lieu of Associate Justice
Presbitero J. Velasco, Jr., per Raffle dated August 31, 2011.
**** Designated as an additional member in lieu of Associate Justice Maria
Lourdes P. A. Sereno, per Special Order No. 1076 dated September 6, 2011.
* FIRST DIVISION.
271
VOL. 657, SEPTEMBER 7, 2011 271
People vs. Villacorta
bility of witnesses, when affirmed by the appellate court, is accorded full
weight and credit as well as great respect, if not conclusive effect. Such
determination made by the trial court proceeds from its first-hand opportunity to
CRIMINAL LAW | PENALTIES
observe the demeanor of the witnesses, their conduct and attitude under grilling
examination, thereby placing the trial court in the unique position to assess the
witnesses’ credibility and to appreciate their truthfulness, honesty and candor.
Denials; Alibi; Denial, like alibi, as an exonerating justification, is inherently
weak and if uncorroborated, regresses to blatant impotence.—Denial, like alibi, as
an exonerating justification, is inherently weak and if uncorroborated, regresses to
blatant impotence. Like alibi, it also constitutes self-serving negative evidence
which cannot be accorded greater evidentiary weight than the declaration of
credible witnesses who testify on affirmative matters.
Proximate Cause; Proximate cause has been defined as “that cause, which, in
natural and continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have occurred.”—
Nevertheless, there is merit in the argument proffered by Villacorta that in the
event he is found to have indeed stabbed Cruz, he should only be held liable for
slight physical injuries for the stab wound he inflicted upon Cruz. The proximate
cause of Cruz’s death is the tetanus infection, and not the stab wound. Proximate
cause has been defined as “that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without
which the result would not have occurred.”
Criminal Law; Physical Injuries; When such intent is lacking but wounds
were inflicted, the crime is not frustrated murder but physical injuries only.—The
intent must be proved in a clear and evident manner to exclude every possible doubt
as to the homicidal (or murderous) intent of the aggressor. The onus probandi lies
not on accused-appellant but on the prosecution. The inference that the intent to
kill existed should not be drawn in the absence of circumstances sufficient to prove
this fact beyond reasonable doubt. When such intent is lacking but wounds were
inflicted, the crime is not frustrated murder but physical injuries only.272
272 SUPREME COURT REPORTS ANNOTATED
People vs. Villacorta
Same; Aggravating Circumstances; Treachery; Treachery exists when an
offender commits any of the crimes against persons, employing means, methods or
forms which tend directly or especially to ensure its execution, without risk to the
offender, arising from the defense that the offended party might make.—Treachery
exists when an offender commits any of the crimes against persons, employing
means, methods or forms which tend directly or especially to ensure its execution,
without risk to the offender, arising from the defense that the offended party might
make. This definition sets out what must be shown by evidence to conclude that
treachery existed, namely: (1) the employment of such means of execution as would
give the person attacked no opportunity for self-defense or retaliation; and (2) the
deliberate and conscious adoption of the means of execution.
APPEAL from a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Public Attorney’s Office for accused-appellant.
LEONARDO-DE CASTRO, J.:
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 On appeal is the Decision1 dated July 30, 2008 of the Court of Appeals in CA-
G.R. CR.-H.C. No. 02550, which affirmed the Decision2 dated September 22, 2006
of the Regional Trial Court (RTC), Branch 170, of Malabon, in Criminal Case No.
27039-MN, finding accused-appellant Orlito Villacorta (Villacorta) guilty of
murder, and sentencing him to suffer the penalty of reclusion perpetua and to pay
the heirs of Danilo Cruz (Cruz) the sum of P50,000.00 as civil indemnity, plus the
costs of suit.
_______________
1 Rollo, pp. 2-16; penned by Associate Justice Sixto C. Marella, Jr. with
Associate Justices Amelita G. Tolentino and Japar B. Dimaampao, concurring.
2 CA Rollo, pp. 58-60; penned by Presiding Judge Benjamin T. Antonio.
273
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People vs. Villacorta
On June 21, 2002, an Information3 was filed against Villacorta charging him
with the crime of murder, as follows:
“That on or about 23rd day of January 2002, in Navotas, Metro Manila, and
within the jurisdiction of this Honorable Court, the above-named accused, armed
with a sharpened bamboo stick, with intent to kill, treachery and evident
premeditation, did then and there willfully, unlawfully and feloniously attack,
assault and stab with the said weapon one DANILO SALVADOR CRUZ, thereby
inflicting upon the victim serious wounds which caused his immediate death.”
When arraigned on September 9, 2002, Villacorta pleaded not guilty.4
During trial, the prosecution presented as witnesses Cristina Mendeja
(Mendeja) and Dr. Domingo Belandres, Jr. (Dr. Belandres).
Mendeja narrated that on January 23, 2002, she was tending her sari-sari store
located at C-4 Road, Bagumbayan, Navotas. Both Cruz and Villacorta were regular
customers at Mendeja’s store. At around two o’clock in the morning, while Cruz
was ordering bread at Mendeja’s store, Villacorta suddenly appeared and, without
uttering a word, stabbed Cruz on the left side of Cruz’s body using a sharpened
bamboo stick. The bamboo stick broke and was left in Cruz’s body. Immediately
after the stabbing incident, Villacorta fled. Mendeja gave chase but failed to catch
Villacorta. When Mendeja returned to her store, she saw her neighbor Aron
removing the broken bamboo stick from Cruz’s body.5 Mendeja and Aron then
brought Cruz to Tondo Medical Center.6
_______________
3 Records, p. 1.
4 CA Rollo, p. 6.
5 TSN, October 20, 2003, pp. 2-9.
6 Records, p. 72.
274
274 SUPREME COURT REPORTS ANNOTATED
People vs. Villacorta
CRIMINAL LAW | PENALTIES
Dr. Belandres was Head of the Tetanus Department at the San Lazaro
Hospital. When Cruz sustained the stab wound on January 23, 2002, he was taken
to the Tondo Medical Center, where he was treated as an out-patient. Cruz was
only brought to the San Lazaro Hospital on February 14, 2002, where he died the
following day, on February 15, 2002. While admitting that he did not personally
treat Cruz, Dr. Belandres was able to determine, using Cruz’s medical chart and
diagnosis, that Cruz died of tetanus infection secondary to stab wound. 7 Dr.
Belandres specifically described the cause of Cruz’s death in the following manner:
“The wound was exposed x x—spurs concerted, the patient developed difficulty of
opening the mouth, spastivity of the body and abdominal pain and the cause of
death is hypoxic encephalopathy—neuro transmitted—due to upper G.I. bleeding
x x x. Diagnosed of Tetanus, Stage III.”8
The prosecution also intended to present Dr. Deverni Matias (Dr. Matias), who
attended to Cruz at the San Lazaro Hospital, but the prosecution and defense
agreed to dispense with Dr. Matias’ testimony based on the stipulation that it
would only corroborate Dr. Belandres’ testimony on Cruz dying of tetanus.
For its part, the defense presented Villacorta himself, who denied stabbing
Cruz. Villacorta recounted that he was on his way home from work at around two
o’clock in the morning of January 21, 2002. Upon arriving home, Villacorta drank
coffee then went outside to buy cigarettes at a nearby store. When Villacorta was
about to leave the store, Cruz put his arm around Villacorta’s shoulder. This
prompted Villacorta to box Cruz, after which, Villacorta went home. Villacorta did
_______________
7 TSN, May 5, 2003, pp. 1-11; Dr. Domingo Belandres, Jr. was also referred to
as Dr. Domingo Melendres, Jr. in the TSN.
8 Id., at p. 6.
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People vs. Villacorta
not notice that Cruz got hurt. Villacorta only found out about Cruz’s death upon
his arrest on July 31, 2002.9
On September 22, 2006, the RTC rendered a Decision finding Villacorta guilty
of murder, qualified by treachery. The dispositive portion of said Decision reads:
“WHEREFORE, in the light of the foregoing, the Court finds accused Orlito
Villacorta guilty beyond reasonable doubt of the crime of Murder and is hereby
sentenced to suffer the penalty of reclusion perpetua and to pay the heirs of Danilo
Cruz the sum of P50,000.00 as civil indemnity for the death of said victim plus the
costs of suit.”10
Villacorta, through his counsel from the Public Attorney’s Office (PAO), filed a
notice of appeal to assail his conviction by the RTC.11 The Court of Appeals directed
the PAO to file Villacorta’s brief, within thirty days from receipt of notice.
Villacorta filed his Appellant’s Brief12 on May 30, 2007; while the People,
through the Office of the Solicitor General (OSG), filed its Appellee’s Brief 13 on
October 2, 2007.
P a g e 203 | 279
 On July 30, 2008, the Court of Appeals promulgated its Decision affirming in
toto the RTC judgment of conviction against Villacorta.
Hence, Villacorta comes before this Court via the instant appeal.
Villacorta manifested that he would no longer file a supplemental brief, as he
was adopting the Appellant’s Brief he filed before the Court of Appeals.14 The OSG,
likewise, manifested that it was no longer filing a supplemental brief. 15
_______________
9 TSN, March 6, 2006, pp. 2-5.
10 CA Rollo, p. 60.
11 Records, p. 144.
12 CA Rollo, pp. 37-57.
13 Id., at pp. 67-96.
14 Rollo, pp. 30-32.
15 Id., at p. 35.
276
276 SUPREME COURT REPORTS ANNOTATED
People vs. Villacorta
In his Appellant’s Brief, Villacorta raised the following assignment of errors:
I appellant, fails to impress the Court because persons who witness crimes react in
THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY OF THE CRIME CHARGED DESPITE THE FAILURE OF
THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING THE QUALIFYING
CIRCUMSTANCE OF TREACHERY.
III
ASSUMING ARGUENDO THAT THE ACCUSED COMMITTED A CRIME, HE
COULD ONLY BE HELD LIABLE FOR SLIGHT PHYSICAL INJURIES.16
Villacorta assails the credibility of Mendeja, an eyewitness to the stabbing
incident. It was Mendeja who positively identified Villacorta as the one who
stabbed Cruz in the early morning of January 23, 2002. Villacorta asserts that
Mendeja’s account of the stabbing incident is replete with inconsistencies and
incredulities, and is contrary to normal human experience, such as: (1) instead of
shouting or calling for help when Villacorta allegedly stabbed Cruz, Mendeja
attempted to run after and catch Villacorta; (2) while, by Mendeja’s own account,
there were other people who witnessed the stabbing and could have chased after
Villacorta, yet, oddly, only Mendeja did; (3) if Cruz was stabbed so swiftly and
suddenly as Mendeja described, then it would have been physically improbable for
Mendeja to have vividly recognized the perpetrator, who immediately ran away
after the stabbing; (4) after the stabbing, both Villacorta and Cruz ran in opposite
directions; and (5) Mendeja had said that the bamboo stick, the alleged murder
weapon, was left at her
_______________
16 CA Rollo, p. 39.
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People vs. Villacorta
store, although she had also stated that the said bamboo stick was left embedded
in Cruz’s body. Villacorta maintains that the aforementioned inconsistencies are
neither trivial nor inconsequential, and should engender some doubt as to his guilt.
We are not persuaded.
To begin with, it is fundamental that the determination by the trial court of the
credibility of witnesses, when affirmed by the appellate court, is accorded full
weight and credit as well as great respect, if not conclusive effect. Such
determination made by the trial court proceeds from its first-hand opportunity to
observe the demeanor of the witnesses, their conduct and attitude under grilling
examination, thereby placing the trial court in the unique position to assess the
witnesses’ credibility and to appreciate their truthfulness, honesty and candor. 17
In this case, both the RTC and the Court of Appeals gave full faith and credence
to the testimony of prosecution witness Mendeja. The Court of Appeals rejected
Villacorta’s attempts to impugn Mendeja’s testimony, thus:
“Appellant’s reason for concluding that witness Mendeja’s testimony is
incredible because she did not shout or call for help and instead run after the
different ways.
“x x x the makings of a human mind are unpredictable; people react
differently and there is no standard form of behavior when one is confronted
by a shocking incident.
Equally lacking in merit is appellant’s second reason which is, other persons
could have run after the appellant after the stabbing incident. As explained by
witness Mendeja, the other person whom she identified as Aron was left to assist
the appellant who was wounded. Further, the stabbing occurred at 2:00 o’clock in
the morn-
_______________
17 People v. Mayingque, G.R. No. 179709, July 6, 2010, 624 SCRA 123, 140.
277
VOL. 657, SEPTEMBER 7, 2011 277
People vs. Villacorta
ing, a time when persons are expected to be asleep in their house, not roaming the
streets.
His [Villacorta’s] other argument that the swiftness of the stabbing incident
rendered impossible or incredible the identification of the assailant cannot likewise
prosper in view of his admission that he was in the store of witness Mendeja on
January 23, 2002 at 2:00 o’clock in the morning and that he assaulted the victim
by boxing him.
Even if his admission is disregarded still the evidence of record cannot support
appellant’s argument. Appellant and the victim were known to witness Mendeja,
both being her friends and regular customers. There was light in front of the store.
An opening in the store measuring 1 and ¼ meters enables the person inside to see
persons outside, particularly those buying articles from the store. The victim was
P a g e 204 | 279
in front of the store buying bread when attacked. Further, immediately after the
stabbing, witness Mendeja ran after the appellant giving her additional
opportunity to identify the malefactor. Thus, authorship of the attack can be
credibly ascertained.”18
Moreover, Villacorta was unable to present any reason or motivation for
Mendeja to fabricate such a lie and falsely accuse Villacorta of stabbing Cruz on
January 23, 2002. We have ruled time and again that where the prosecution
eyewitness was familiar with both the victim and accused, and where the locus
criminis afforded good visibility, and where no improper motive can be attributed
to the witness for testifying against the accused, then her version of the story
deserves much weight.19
The purported inconsistencies in Mendeja’s testimony pointed out by Villacorta
are on matters that have no bearing on the fundamental fact which Mendeja
testified on: that Villacorta stabbed Cruz in the early morning of January 23, 2002,
right in front of Mendeja’s store.
_______________
18 CA Rollo, pp. 9-10.
19 People v. Alcantara, 471 Phil. 690, 700; 427 SCRA 673, 682 (2004).
279
VOL. 657, SEPTEMBER 7, 2011 279
People vs. Villacorta
In the face of Mendeja’s positive identification of Villacorta as Cruz’s stabber,
Villacorta could only muster an uncorroborated denial. Denial, like alibi, as an
exonerating justification, is inherently weak and if uncorroborated, regresses to
blatant impotence. Like alibi, it also constitutes self-serving negative evidence
which cannot be accorded greater evidentiary weight than the declaration of
credible witnesses who testify on affirmative matters.20
Hence, we do not deviate from the foregoing factual findings of the RTC, as
affirmed by the Court of Appeals.
Nevertheless, there is merit in the argument proffered by Villacorta that in the
event he is found to have indeed stabbed Cruz, he should only be held liable for
slight physical injuries for the stab wound he inflicted upon Cruz. The proximate
cause of Cruz’s death is the tetanus infection, and not the stab wound.
Proximate cause has been defined as “that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred.”21
In this case, immediately after he was stabbed by Villacorta in the early
morning of January 23, 2002, Cruz was rushed to and treated as an out-patient at
the Tondo Medical Center. On February 14, 2002, Cruz was admitted to the San
Lazaro Hospital for symptoms of severe tetanus infection, where he died the
following day, on February 15, 2002. The prosecution did not present evidence of
the emergency medical treatment Cruz received at the Tondo Medical Center,
subsequent visits by Cruz to Tondo Medical Center or any other hospital for follow-
up medical treatment of his stab
CRIMINAL LAW | PENALTIES
_______________
20 People v. Barde, G.R. No. 183094, September 22, 2010, 631 SCRA 187, 211.
21 Calimutan v. People, 517 Phil. 272, 284; 482 SCRA 44, 60 (2006).
280
280 SUPREME COURT REPORTS ANNOTATED
People vs. Villacorta
wound, or Cruz’s activities between January 23 to February 14, 2002.
In Urbano v. Intermediate Appellate Court,22 the Court was confronted with a
case of very similar factual background as the one at bar. During an altercation on
October 23, 1980, Urbano hacked Javier with a bolo, inflicting an incised wound on
Javier’s hand. Javier was treated by Dr. Meneses. On November 14, 1980, Javier
was rushed to the hospital with lockjaw and convulsions. Dr. Exconde, who
attended to Javier, found that Javier’s serious condition was caused by tetanus
infection. The next day, on November 15, 1980, Javier died. An Information was
filed against Urbano for homicide. Both the Circuit Criminal Court and the
Intermediate Appellate Court found Urbano guilty of homicide, because Javier’s
death was the natural and logical consequence of Urbano’s unlawful act. Urbano
appealed before this Court, arguing that Javier’s own negligence was the proximate
cause of his death. Urbano alleged that when Dr. Meneses examined Javier’s
wound, he did not find any tetanus infection and that Javier could have acquired
the tetanus germs when he returned to work on his farm only two (2) weeks after
sustaining his injury. The Court granted Urbano’s appeal.
We quote extensively from the ratiocination of the Court in Urbano:
“The issue, therefore, hinges on whether or not there was an efficient
intervening cause from the time Javier was wounded until his death which would
exculpate Urbano from any liability for Javier’s death.
We look into the nature of tetanus-
“The incubation period of tetanus, i.e., the time between injury and the
appearance of unmistakable symptoms, ranges from 2 to 56 days. However,
over 80 percent of patients become symptomatic within 14 days. A short
incubation period indi-
_______________
22 241 Phil. 1; 157 SCRA 1 (1988).
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VOL. 657, SEPTEMBER 7, 2011 281
People vs. Villacorta
cates severe disease, and when symptoms occur within 2 or 3 days of injury
the mortality rate approaches 100 percent.
“Non-specific premonitory symptoms such as restlessness, irritability,
and headache are encountered occasionally, but the commonest presenting
complaints are pain and stiffness in the jaw, abdomen, or back and difficulty
swallowing. As the disease progresses, stiffness gives way to rigidity, and
patients often complain of difficulty opening their mouths. In fact, trismus
is the commonest manifestation of tetanus and is responsible for the
P a g e 205 | 279
 familiar descriptive name of lockjaw. As more muscles are involved, rigidity
becomes generalized, and sustained contractions called risus sardonicus.
The intensity and sequence of muscle involvement is quite variable. In a
small proportion of patients, only local signs and symptoms develop in the
region of the injury. In the vast majority, however, most muscles are
involved to some degree, and the signs and symptoms encountered depend
upon the major muscle groups affected.
“Reflex spasm usually occur within 24 to 72 hours of the first symptoms,
an interval referred to as the onset time. As in the case of the incubation
period, a short onset time is associated with a poor prognosis. Spasms are
caused by sudden intensification of afferent stimuli arising in the periphery,
which increases rigidity and causes simultaneous and excessive contraction
of muscles and their antagonists. Spasms may be both painful and
dangerous. As the disease progresses, minimal or inapparent stimuli
produce more intense and longer lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic contraction of
respiratory muscles which prevent adequate ventilation. Hypoxia may then
lead to irreversible central nervous system damage and death.
“Mild tetanus is characterized by an incubation period of at least 14 days
and an onset time of more than 6 days. Trismus is usually present, but
dysphagia is absent and generalized spasms are brief and mild. Moderately
severe tetanus has a somewhat shorter incubation period and onset time;
trismus is marked, dysphagia and generalized rigidity are present, but
ventilation remains adequate even during spasms. The criteria for severe
tetanus include a short incubation time, and an on-
282
282 SUPREME COURT REPORTS ANNOTATED
People vs. Villacorta
set time of 72 hrs., or less, severe trismus, dysphagia and rigidity and
frequent prolonged, generalized convulsive spasms. (Harrison’s Principle of
Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man’s
body depends on the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm
when he parried the bolo which Urbano used in hacking him. This incident took
place on October 23, 1980. After 22 days, or on November 14, 1980, he suffered the
symptoms of tetanus, like lockjaw and muscle spasms. The following day,
November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already infected
by tetanus germs at the time, it is more medically probable that Javier should have
been infected with only a mild case of tetanus because the symptoms of tetanus
appeared on the 22nd day after the hacking incident or more than 14 days after the
infliction of the wound. Therefore, the onset time should have been more than six
days. Javier, however, died on the second day from the onset time. The more
credible conclusion is that at the time Javier’s wound was inflicted by the appellant,
the severe form of tetanus that killed him was not yet present. Consequently,
CRIMINAL LAW | PENALTIES
Javier’s wound could have been infected with tetanus after the hacking incident.
Considering the circumstance surrounding Javier’s death, his wound could have
been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.”23
The incubation period for tetanus infection and the length of time between the
hacking incident and the manifestation of severe tetanus infection created doubts
in the mind of the Court that Javier acquired the severe tetanus infection from the
hacking incident. We explained in Urbano that:
“The rule is that the death of the victim must be the direct, natural, and logical
consequence of the wounds inflicted upon him by the accused. (People v.
Cardenas, supra) And since we are dealing with a criminal conviction, the proof
that the accused caused the
_______________
23 Id., at pp. 9-11; pp. 9-10.
283
VOL. 657, SEPTEMBER 7, 2011 283
People vs. Villacorta
victim’s death must convince a rational mind beyond reasonable doubt. The medical
findings, however, lead us to a distinct possibility that the infection of the wound
by tetanus was an efficient intervening cause later or between the time Javier was
wounded to the time of his death. The infection was, therefore, distinct and foreign
to the crime. (People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but
the remote cause and its subsequent infection, for failure to take necessary
precautions, with tetanus may have been the proximate cause of Javier’s death
with which the petitioner had nothing to do. As we ruled in Manila Electric Co. v.
Remoquillo, et al. (99 Phil. 118).
“A prior and remote cause cannot be made the basis of an action if such
remote cause did nothing more than furnish the condition or give rise to the
occasion by which the injury was made possible, if there intervened between
such prior or remote cause and the injury a distinct, successive, unrelated,
and efficient cause of the injury, even though such injury would not have
happened but for such condition or occasion. If no danger existed in the
condition except because of the independent cause, such condition was not
the proximate cause. And if an independent negligent act or defective
condition sets into operation the instances, which result in injury because
of the prior defective condition, such subsequent act or condition is the
proximate cause.” (45 C.J. pp. 931-932). (at p. 125)”24
We face the very same doubts in the instant case that compel us to set aside
the conviction of Villacorta for murder. There had been an interval of 22 days
between the date of the stabbing and the date when Cruz was rushed to San Lazaro
Hospital, exhibiting symptoms of severe tetanus infection. If Cruz acquired severe
tetanus infection from the stabbing, then the symptoms would have appeared a lot
sooner than 22 days later. As the Court noted in Urbano, severe tetanus infection
has a short incubation period, less than 14 days; and those that exhibit symptoms
with two to three days from the injury, have one hundred percent (100%) mortality.
Ulti-
P a g e 206 | 279
 _______________
24 Id., at pp. 11-12; p. 10.
284
284 SUPREME COURT REPORTS ANNOTATED
People vs. Villacorta
mately, we can only deduce that Cruz’s stab wound was merely the remote cause,
and its subsequent infection with tetanus might have been the proximate cause of
Cruz’s death. The infection of Cruz’s stab wound by tetanus was an efficient
intervening cause later or between the time Cruz was stabbed to the time of his
death.
However, Villacorta is not totally without criminal liability. Villacorta is guilty
of slight physical injuries under Article 266(1) of the Revised Penal Code for the
stab wound he inflicted upon Cruz. Although the charge in the instant case is for
murder, a finding of guilt for the lesser offense of slight physical injuries may be
made considering that the latter offense is necessarily included in the former since
the essential ingredients of slight physical injuries constitute and form part of those
constituting the offense of murder.25
We cannot hold Villacorta criminally liable for attempted or frustrated murder
because the prosecution was not able to establish Villacorta’s intent to kill. In fact,
the Court of Appeals expressly observed the lack of evidence to prove such an intent
beyond reasonable doubt, to wit:
“Appellant stabbed the victim only once using a sharpened bamboo stick,
hitting him on the left side of the body and then immediately fled. The instrument
used is not as lethal as those made of metallic material. The part of the body hit is
not delicate in the sense that instant death can ensue by reason of a single stab
wound. The assault was done only once. Thus, there is doubt as to whether
appellant had an intent to kill the victim, which should be resolved in favor of the
appellant. x x x.”26
The intent must be proved in a clear and evident manner to exclude every
possible doubt as to the homicidal (or murderous) intent of the aggressor. The onus
probandi lies not on
_______________
25 People v. Vicente, 423 Phil. 1065, 1078; 372 SCRA 765, 776 (2001).
26 CA Rollo, p. 13.
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People vs. Villacorta
accused-appellant but on the prosecution. The inference that the intent to kill
existed should not be drawn in the absence of circumstances sufficient to prove this
fact beyond reasonable doubt. When such intent is lacking but wounds were
inflicted, the crime is not frustrated murder but physical injuries only.27
Evidence on record shows that Cruz was brought to Tondo Medical Center for
medical treatment immediately after the stabbing incident. Right after receiving
medical treatment, Cruz was then released by the Tondo Medical Center as an out-
CRIMINAL LAW | PENALTIES
patient. There was no other evidence to establish that Cruz was incapacitated for
labor and/or required medical attendance for more than nine days. Without such
evidence, the offense is only slight physical injuries.28
We still appreciate treachery as an aggravating circumstance, it being
sufficiently alleged in the Information and proved during trial.
The Information specified that “accused, armed with a sharpened bamboo stick,
with intent to kill, treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and stab with the said weapon
one DANILO SALVADOR CRUZ x x x.”
Treachery exists when an offender commits any of the crimes against persons,
employing means, methods or forms which tend directly or especially to ensure its
execution, without risk to the offender, arising from the defense that the offended
party might make. This definition sets out what must be shown by evidence to
conclude that treachery existed, namely: (1) the employment of such means of
execution as would give the person attacked no opportunity for self-defense or
retaliation; and (2) the deliberate and conscious adoption of the means of execution.
To reiterate, the essence of qualifying
_______________
27 People v. Pagador, 409 Phil. 338, 351-352; 357 SCRA 299, 309 (2001).
28 Li v. People, 471 Phil. 128, 150; 427 SCRA 217, 235 (2004).
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286 SUPREME COURT REPORTS ANNOTATED
People vs. Villacorta
circumstance is the suddenness, surprise and the lack of expectation that the
attack will take place, thus, depriving the victim of any real opportunity for self-
defense while ensuring the commission of the crime without risk to the
aggressor.29 Likewise, even when the victim was forewarned of the danger to his
person, treachery may still be appreciated since what is decisive is that the
execution of the attack made it impossible for the victim to defend himself or to
retaliate.30
Both the RTC and the Court of Appeals found that treachery was duly proven
in this case, and we sustain such finding. Cruz, the victim, was attacked so
suddenly, unexpectedly, and without provocation. It was two o’clock in the morning
of January 23, 2002, and Cruz, who was out buying bread at Mendeja’s store, was
unarmed. Cruz had his guard down and was totally unprepared for an attack on
his person. Villacorta suddenly appeared from nowhere, armed with a sharpened
bamboo stick, and without uttering a word, stabbed Cruz at the left side of his body,
then swiftly ran away. Villacorta’s treacherous mode of attack left Cruz with no
opportunity at all to defend himself or retaliate.
Article 266(1) of the Revised Penal Code provides:
“ART. 266. Slight physical injuries and maltreatment.—The crime of slight
physical injuries shall be punished:
P a g e 207 | 279
 1. By arresto menor when the offender has inflicted physical injuries which
shall incapacitate the offended party from labor from one to nine days, or shall
require medical attendance during the same period.”
The penalty of arresto menor spans from one (1) day to thirty (30) days.31 The
Indeterminate Sentence Law does not
_______________
29 People v. Casta, G.R. No. 172871, September 16, 2008, 565 SCRA 341, 356-
357.
30 People v. Napalit, G.R. No. 181247, March 19, 2010, 616 SCRA 245, 252.
31 Revised Penal Code, Article 27.
287
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People vs. Villacorta
apply since said law excludes from its coverage cases where the penalty imposed
does not exceed one (1) year.32 With the aggravating circumstance of treachery, we
can sentence Villacorta with imprisonment anywhere within arresto menor in the
maximum period, i.e., twenty-one (21) to thirty (30) days. Consequently, we impose
upon Villacorta a straight sentence of thirty (30) days of arresto menor; but given
that Villacorta has been in jail since July 31, 2002 until present time, already way
beyond his imposed sentence, we order his immediate release.
Under paragraph (1), Article 2219 of the Civil Code, moral damages may be
recovered in a criminal offense resulting in physical injuries. Moral damages
compensate for the mental anguish, serious anxiety, and moral shock suffered by
the victim and his family as being a proximate result of the wrongful act. An award
requires no proof of pecuniary loss. Pursuant to previous jurisprudence, an award
of Five Thousand Pesos (P5,000.00) moral damages is appropriate for less serious,
as well as slight physical injuries.33
WHEREFORE, the Decision dated July 30, 2008 of the Court of Appeals in CA-
G.R. CR.-H.C. No. 02550, affirming the Decision dated September 22, 2006 of the
Regional Trial Court, Branch 170, of Malabon, in Criminal Case No. 27039-MN, is
REVERSED and SET ASIDE. A new judgment is entered finding Villacorta
GUILTY beyond reasonable doubt of the crime of slight physical injuries, as defined
and punished by Article 266 of the Revised Penal Code, and sentenced to suffer the
penalty of thirty (30) days arresto menor. Considering that Villacorta has been
incarcerated well beyond the period of the penalty herein imposed, the Director of
the Bureau of Prisons is ordered to cause Villacorta’s immediate
_______________
32 People v. Tan, 411 Phil. 813, 843; 359 SCRA 283, 308 (2001).
33 Aradillos v. Court of Appeals, 464 Phil. 650, 679; 419 SCRA 514, 536
(2004); People v. Loreto, 446 Phil. 592, 614; 398 SCRA 448, 465 (2003).
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People vs. Villacorta
CRIMINAL LAW | PENALTIES
release, unless Villacorta is being lawfully held for another cause, and to inform
this Court, within five (5) days from receipt of this Decision, of the compliance with
such order. Villacorta is ordered to pay the heirs of the late Danilo Cruz moral
damages in the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.
Corona (C.J., Chairperson), Bersamin, Del Castillo and Villarama, Jr., JJ.,
concur.
Judgment reversed and set aside.
Note.—Although treachery absorbs abuse of superior strength when both are
attendant to the crime committed, the presence of one of these circumstances does
not necessarily automatically result in the presence of the other. (People vs. Ibañez,
428 SCRA 146 [2004])
——o0o——
G.R. No. 178321. October 5, 2011.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CONRADO
LAOG y RAMIN, accused-appellant.
Criminal Law; Witnesses; Jurisprudence has decreed that the issue of
credibility of witnesses is a question best addressed to the province of the trial court
because of its unique position of having observed that elusive and incommunicable
evidence of the witnesses’ deportment on the stand while testifying which
opportunity is denied to the appellate courts.—Appellant principally attacks the
credibility of prosecution witness AAA. Jurisprudence has decreed that the issue of
credibility of witnesses is “a question best addressed to the province of the trial
court because of its unique position of having observed that elusive and
incommunicable evidence of the witnesses’ deportment on the stand while
testifying which opportunity is denied to the appellate courts” and “absent any
substantial reason which would justify the reversal of the trial court’s assessments
and conclusions, the reviewing court is generally bound by the former’s findings,
particularly when no significant facts and circumstances are shown to have been
overlooked or disregarded which when considered would have affected the outcome
of the case.” This rule is even more stringently applied if the appellate court
concurred with the trial court.
Same; Same; Alibi and Denial; Positive identification of the accused, when
categorical and consistent and without any showing of ill motive on the part of the
eyewitness testifying, should prevail over the alibi and denial of the accused whose
testimony is not substantiated by clear and convincing evidence.—On the other
hand, appellant merely interposed the defense of denial and alibi. He claimed that
at the time of the incident, he was at his house with his children and nephew
cooking dinner. His defense, however, cannot prevail over the straightforward and
credible testimony of AAA who positively identified him as the perpetrator of the
murder and rape. Time and again, we have held that positive identification of the
accused, when categorical and consistent and without any showing of ill motive on
the part of the eyewitness testifying, should prevail over the alibi
_______________
* FIRST DIVISION.
P a g e 208 | 279
 655
VOL. 658, OCTOBER 5, 2011 655
People vs. Laog
and denial of the appellant whose testimony is not substantiated by clear and
convincing evidence. AAA was firm and unrelenting in pointing to appellant as the
one who attacked her and Jennifer, stabbing the latter to death before raping AAA.
It should be noted that AAA knew appellant well since they were relatives by
affinity. As correctly held by the CA, with AAA’s familiarity and proximity with the
appellant during the commission of the crime, her identification of appellant could
not be doubted or mistaken. In fact, AAA, upon encountering appellant, did not run
away as she never thought her own uncle would harm her and her friend. Moreover,
the most natural reaction of victims of violence is to strive to see the appearance of
the perpetrators of the crime and observe the manner in which the crime is being
committed. There is no evidence to show any improper motive on the part of AAA
to testify falsely against appellant or to falsely implicate him in the commission of
a crime. Thus, the logical conclusion is that the testimony is worthy of full faith
and credence.
Same; Same; Rape; It cannot be overemphasized that the credibility of a rape
victim is not diminished, let alone impaired, by minor inconsistencies in her
testimony.—Based on AAA’s account, appellant did not undress her completely—
her blouse and bra were merely lifted up (“nililis”) while her undergarments were
just pulled down, which therefore explains why she still had her clothes on when
she crawled to her grandfather’s farm. Nonetheless, this matter raised by appellant
is a minor detail which had nothing to do with the elements of the crime of rape.
Discrepancies referring only to minor details and collateral matters—not to the
central fact of the crime—do not affect the veracity or detract from the essential
credibility of witnesses’ declarations, as long as these are coherent and intrinsically
believable on the whole. For a discrepancy or inconsistency in the testimony of a
witness to serve as a basis for acquittal, it must establish beyond doubt the
innocence of the appellant for the crime charged. It cannot be overemphasized that
the credibility of a rape victim is not diminished, let alone impaired, by minor
inconsistencies in her testimony.
Same; Same; Same; The foremost consideration in the prosecution of rape is
the victim’s testimony and not the findings of the medico-legal officer.—As to the
fact that the physician who examined AAA at the hospital did not testify during
the trial, we find this not fatal to the prosecution’s case. It must be underscored
that the fore-
656
656 SUPREME COURT REPORTS ANNOTATED
People vs. Laog
most consideration in the prosecution of rape is the victim’s testimony and
not the findings of the medico-legal officer. In fact, a medical examination of the
victim is not indispensable in a prosecution for rape; the victim’s testimony alone,
if credible, is sufficient to convict. Thus we have ruled that a medical examination
of the victim, as well as the medical certificate, is merely corroborative in character
and is not an indispensable element for conviction in rape. What is important is
CRIMINAL LAW | PENALTIES
that the testimony of private complainant about the incident is clear, unequivocal
and credible, as what we find in this case.
Same; Rape with Homicide; Complex Crimes; Special Complex Crimes
(Composite Crimes); Words and Phrases; Composite crimes are neither of the same
legal basis as nor subject to the rules on complex crimes in Article 48 of the Revised
Penal Code, since they do not consist of a single act giving rise to two or more grave
or less grave felonies (compound crimes) nor do they involve an offense being a
necessary means to commit another (complex crime proper); Article 266-B of the
Revised Penal Code, as amended, provides only a single penalty for the composite
acts of rape and the killing committed by reason or on the occasion of the rape.—A
special complex crime, or more properly, a composite crime, has its own definition
and special penalty in the Revised Penal Code, as amended. Justice Regalado, in
his Separate Opinion in the case of People v. Barros, 245 SCRA 312
(1995), explained that composite crimes are “neither of the same legal basis as nor
subject to the rules on complex crimes in Article 48 [of the Revised Penal Code],
since they do not consist of a single act giving rise to two or more grave or less grave
felonies [compound crimes] nor do they involve an offense being a necessary means
to commit another [complex crime proper]. However, just like the regular complex
crimes and the present case of aggravated illegal possession of firearms, only a
single penalty is imposed for each of such composite crimes although composed of
two or more offenses.” Article 266-B of the Revised Penal Code, as amended,
provides only a single penalty for the composite acts of rape and the killing
committed by reason or on the occasion of the rape.
Same; Same; Same; Same; In rape with homicide, it is immaterial that the
person killed is someone other than the woman victim of the rape.—The facts
established showed that the constitutive elements of rape with homicide were
consummated, and it is immaterial that the person killed in this case is someone
other than the
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People vs. Laog
woman victim of the rape. An analogy may be drawn from our rulings in cases
of robbery with homicide, where the component acts of homicide, physical injuries
and other offenses have been committed by reason or on the occasion of robbery.
Same; Same; Same; Same; Aggravating Circumstances; Words and Phrases;
In the special complex crime of rape with homicide, the term “homicide” is to be
understood in its generic sense, and includes murder and slight physical injuries
committed by reason or on occasion of the rape; As in the case of robbery with
homicide, the aggravating circumstance of treachery is to be considered as a generic
aggravating circumstance only.—In the special complex crime of rape with
homicide, the term “homicide” is to be understood in its generic sense, and includes
murder and slight physical injuries committed by reason or on occasion of the rape.
Hence, even if any or all of the circumstances (treachery, abuse of superior strength
and evident premeditation) alleged in the information have been duly established
by the prosecution, the same would not qualify the killing to murder and the crime
committed by appellant is still rape with homicide. As in the case of robbery with
P a g e 209 | 279
homicide, the aggravating circumstance of treachery is to be considered as a generic
aggravating circumstance only.
Same; Same; Same; Same; Same; Abuse of Superior Strength; The
aggravating circumstance of abuse of superior strength is considered whenever there
is notorious inequality of forces between the victim and the aggressor that is plainly
and obviously advantageous to the aggressor and purposely selected or taken
advantage of to facilitate the commission of the crime.—The aggravating
circumstance of abuse of superior strength is considered whenever there is
notorious inequality of forces between the victim and the aggressor that is plainly
and obviously advantageous to the aggressor and purposely selected or taken
advantage of to facilitate the commission of the crime. It is taken into account
whenever the aggressor purposely used excessive force that is out of proportion to
the means of defense available to the person attacked.
Same; Same; Damages; Exemplary Damages; Even without the attendance of
aggravating circumstances, exemplary damages may still be awarded where the
circumstances of the case show the “highly reprehensible or outrageous conduct of
the offender.”—The failure of the prosecution to allege in the information AAA’s
relationship to
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658 SUPREME COURT REPORTS ANNOTATED
People vs. Laog
appellant will not bar the consideration of the said circumstance in the
determination of his civil liability. In any case, even without the attendance of
aggravating circumstances, exemplary damages may still be awarded where the
circumstances of the case show the “highly reprehensible or outrageous conduct of
the offender.”
APPEAL from a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Public Attorney’s Office for accused-appellant.
VILLARAMA, JR., J.:
For our review is the March 21, 2007 Decision1 of the Court of Appeals (CA) in
CA-G.R. CR-HC No. 00234 which affirmed appellant’s conviction for murder in
Criminal Case No. 2162-M-2000 and rape in Criminal Case No. 2308-M-2000.
Appellant Conrado Laog y Ramin was charged with murder before the Regional
Trial Court (RTC), Branch 11, of Malolos, Bulacan. The Information, 2 which was
docketed as Criminal Case No. 2162-M-2000, alleged:
“That on or about the 6th day of June, 2000, in the municipality of San Rafael,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, armed with a lead pipe and with intent to kill one
Jennifer Patawaran-Rosal, did then and there wil[l]fully, unlawfully and
feloniously, with evident premeditation, abuse of superior strength and treachery,
attack, assault and hit with the said lead pipe the said Jennifer Patawaran-Rosal,
thereby inflicting upon said Jennifer Patawaran-Rosal serious physical injuries
which directly caused her death.
Contrary to law.”
CRIMINAL LAW | PENALTIES
_______________
1 Rollo, pp. 3-16. Penned by Associate Justice Noel G. Tijam with Associate
Justices Vicente S.E. Veloso and Sesinando E. Villon concurring.
2 Records, Vol. I, p. 1.
659
VOL. 658, OCTOBER 5, 2011 659
People vs. Laog
He was likewise charged before the same court with the crime of rape of
AAA.3 The second Information,4 which was docketed as Criminal Case No. 2308-
M-2000, alleged:
“That on or about the 6th day of June, 2000, in the municipality of San Rafael,
province of Bulacan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with lewd designs, by means of force, violence and
intimidation, that is, by attacking and hitting with a lead pipe one [AAA] which
resulted [in] her incurring serious physical injuries that almost caused her death,
and while in such defenseless situation, did then and there have carnal knowledge
of said [AAA] against her will and consent.
Contrary to law.”
When arraigned, appellant pleaded not guilty to both charges. The two cases
were thereafter tried jointly because they arose from the same incident.
The prosecution presented as its principal witness AAA, the rape victim who
was 19 years old at the time of the incident. Her testimony was corroborated by her
grandfather BBB, Dr. Ivan Richard Viray, and her neighbor CCC.
AAA testified that at around six o’clock in the evening of June 6, 2000, she and
her friend, Jennifer Patawaran-Rosal, were walking along the rice paddies on their
way to apply for work at a canteen near the National Highway in Sampaloc, San
Rafael, Bulacan. Suddenly, appellant, who was holding an ice pick and a lead pipe,
waylaid them and forcibly brought them to a grassy area at the back of a concrete
wall. Without warning, appellant struck AAA in the head with the lead pipe
_______________
3 Consistent with our decision in People v. Cabalquinto, G.R. No. 167693,
September 19, 2006, 502 SCRA 419, the real name of the rape victim in this case is
withheld and instead fictitious initials are used to represent her. Also, the personal
circumstances of the victim or any other information tending to establish or
compromise her identity, as well as those of her immediate family or household
members, are not disclosed in this decision.
4 Records, Vol. II, p. 1.
660
660 SUPREME COURT REPORTS ANNOTATED
People vs. Laog
causing her to feel dizzy and to fall down. When Jennifer saw this, she cried out for
help but appellant also hit her on the head with the lead pipe, knocking her down.
Appellant stabbed Jennifer several times with the ice pick and thereafter covered
her body with thick grass.5 Appellant then turned to AAA. He hit AAA in the head
several times more with the lead pipe and stabbed her on the face. While AAA was
in such defenseless position, appellant pulled down her jogging pants, removed her
P a g e 210 | 279
panty, and pulled up her blouse and bra. He then went on top of her, sucked her
breasts and inserted his penis into her vagina. After raping AAA, appellant also
covered her with grass. At that point, AAA passed out.6
When AAA regained consciousness, it was nighttime and raining hard. She
crawled until she reached her uncle’s farm at daybreak on June 8, 2000. 7 When she
saw him, she waved at him for help. Her uncle, BBB, and a certain Nano then
brought her to Carpa Hospital in Baliuag, Bulacan where she stayed for more than
three weeks. She later learned that Jennifer had died.8
During cross-examination, AAA explained that she did not try to run away
when appellant accosted them because she trusted appellant who was her uncle by
affinity. She said that she never thought he would harm them. 9BBB testified that
on June 8, 2000, at about six o’clock in the morning, he was at his rice field at
Sampaloc, San Rafael, Bulacan when he saw a woman waving a hand and then fell
down. The woman was about 200 meters away from him when he saw her waving
to him, and he did not mind her. However, when she was about 100 meters away
from him, he recognized the woman as AAA, his granddaughter. He imme-
_______________
5 TSN, June 20, 2001, pp. 3-4; TSN, December 12, 2001, pp. 3-7.
6 Id., at pp. 4-5.
7 Id., at p. 6; TSN, December 12, 2001, pp. 12-13.
8 Id., at pp. 6-7.
9 TSN, December 12, 2001, p. 7.
661
VOL. 658, OCTOBER 5, 2011 661
People vs. Laog
diately approached her and saw that her face was swollen, with her hair covering
her face, and her clothes all wet. He asked AAA what happened to her, and AAA
uttered, “Si Tata Coni” referring to appellant who is his son-in-law.10 With the help
of his neighbor, he brought AAA home.11 AAA was later brought to Carpa Hospital
in Baliuag, Bulacan where she recuperated for three weeks.
CCC, neighbor of AAA and Jennifer, testified that sometime after June 6, 2000,
she visited AAA at the hospital and asked AAA about the whereabouts of Jennifer.
AAA told her to look for Jennifer somewhere at Buenavista. She sought the
assistance of Barangay Officials and they went to Buenavista where they found
Jennifer’s cadaver covered with grass and already bloated.12
Meanwhile, Dr. Ivan Richard Viray, a medico-legal officer of the Province of
Bulacan, conducted the autopsy on the remains of Jennifer. His findings are as
follows:
“…the body is in advanced stage of decomposition[;] … eyeballs and to[n]gue were
protru[d]ed; the lips and abdomen are swollen; … desquamation and bursting of
bullae and denudation of the epidermis in the head, trunks and on the upper
extremities[;] [f]rothy fluid and maggots coming from the nose, mouth, genital
region and at the site of wounds, … three (3) lacerations at the head[;] two (2) stab
wounds at the submandibular region[;] four [4] punctured wounds at the chest of
the victim[.]
CRIMINAL LAW | PENALTIES
… cause of death of the victim was hemorrhagic shock as result of stab wounds
[in] the head and trunk.”13
The prosecution and the defense also stipulated on the testimony of Elizabeth
Patawaran, Jennifer’s mother, as to the civil aspect of Criminal Case No. 2162-M-
2000. It was stipu-
_______________
10 TSN, January 16, 2002, pp. 5-7.
11 Id., at p. 8.
12 TSN, May 22, 2002, pp. 4-7.
13 TSN, February 27, 2002, p. 5.
662
662 SUPREME COURT REPORTS ANNOTATED
People vs. Laog
lated that she spent P25,000 for Jennifer’s funeral and burial. 14
Appellant, on the other hand, denied the charges against him. Appellant
testified that he was at home cooking dinner around the time the crimes were
committed. With him were his children, Ronnie, Jay, Oliver and Conrado, Jr. and
his nephew, Rey Laog. At around seven o’clock, he was arrested by the police
officers of San Rafael, Bulacan. He learned that his wife had reported him to the
police after he “went wild” that same night and struck with a lead pipe a man whom
he saw talking to his wife inside their house. When he was already incarcerated,
he learned that he was being charged with murder and rape.15
Appellant further testified that AAA and Jennifer frequently went to
his nipa hut whenever they would ask for rice or money. He claimed that in the
evening of June 5, 2000, AAA and Jennifer slept in his nipa hut but they left the
following morning at around seven o’clock. An hour later, he left his house to have
his scythe repaired. However, he was not able to do so because that was the time
when he “went wild” after seeing his wife with another man. He admitted that
his nipa hut is more or less only 100 meters away from the scene of the crime.16
The defense also presented appellant’s nephew, Rey Laog, who testified that he
went to appellant’s house on June 5, 2000, at around three o’clock in the afternoon,
and saw AAA and Jennifer there. He recalled seeing AAA and Jennifer before at
his uncle’s house about seven times because AAA and his uncle had an illicit affair.
He further testified that appellant arrived before midnight on June 5, 2000 and
slept with AAA. The following morning, at around six o’clock, AAA and Jennifer
went home. He and appellant meanwhile left the
_______________
14 CA Rollo, p. 31.
15 TSN, December 4, 2002, pp. 3-5.
16 Id., at pp. 4-7.
663
VOL. 658, OCTOBER 5, 2011 663
People vs. Laog
house together. Appellant was going to San Rafael to have his scythe repaired while
he proceeded to his house in Pinakpinakan, San Rafael, Bulacan.17
P a g e 211 | 279
 After trial, the RTC rendered a Joint Decision18 on June 30, 2003 finding
appellant guilty beyond reasonable doubt of both crimes. The dispositive portion of
the RTC decision reads:
“WHEREFORE, in Crim. Case No. 2162-M-2000, this court finds the accused
Conrado Laog GUILTY beyond reasonable doubt of Murder under Art. 248 of the
Revised Penal Code, as amended, and hereby sentences him to suffer the penalty
of Reclusion Perpetua and to pay the heirs of Jennifer Patawaran, the following
sums of money:
a. P60,000.00 as civil indemnity;
b. P50,000.00 as moral damages;
c. P30,000.00 as exemplary damages.
WHEREFORE, in Crim. Case No. 2308-M-2000, this Court hereby finds the
accused Conrado Laog GUILTY beyond reasonable doubt of Rape under Art. 266-
A par. (a) of the Revised Penal Code, as amended, and hereby sentences him to
suffer the penalty of Reclusion Perpetua and to pay the private complainant the
following sums of money.
a. P50,000.00 as civil indemnity;
b. P50,000.00 as moral damages;
c. P30,000.00 as exemplary damages.
SO ORDERED.”19
Appellant appealed his conviction to this Court. But conformably with our
pronouncement in People v. Mateo,20 the case was referred to the CA for
appropriate action and disposition.
In a Decision dated March 21, 2007, the CA affirmed with modification the trial
court’s judgment. The dispositive portion of the CA decision reads:
_______________
17 TSN, March 26, 2003, pp. 3-5.
18 CA Rollo, pp. 29-33.
19 Id., at pp. 32-33.
20 G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.
664
664 SUPREME COURT REPORTS ANNOTATED
People vs. Laog
“WHEREFORE, the instant Appeal is DISMISSED. The assailed Joint
Decision, dated June 30, 2003, of the Regional Trial Court of Malolos, Bulacan,
Branch 11, in Criminal Case Nos. 2162-M-2000 & 2308-M-2000, is
hereby AFFIRMED with MODIFICATION. In Criminal Case [No.] 2162-M-
2000, Accused-Appellant is further ordered to pay the heirs of Jennifer Patawaran
[an] additional P25,000.00 as actual damages. The exemplary damages
awarded by the Trial Court in 2162-M-2000 & 2308-M-2000 are hereby reduced
to P25,000.00 each.
SO ORDERED.”21
Appellant is now before this Court assailing the CA’s affirmance of his
conviction for both crimes of rape and murder. In a Resolution 22 dated August 22,
2007, we required the parties to submit their respective Supplemental Briefs, if
they so desire. However, the parties submitted separate Manifestations in lieu of
CRIMINAL LAW | PENALTIES
Supplemental Briefs, adopting the arguments in their respective briefs filed in the
CA. Appellant had raised the following errors allegedly committed by the trial
court:
I
THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE
INCONSISTENT AND INCREDIBLE TESTIMONY OF PROSECUTION
WITNESS [AAA].
II
THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-
APPELLANT GUILTY OF THE CRIMES CHARGED DESPITE FAILURE OF
THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.23
Appellant asserts that the prosecution failed to prove his guilt beyond
reasonable doubt for the killing of Jennifer Patawaran-Rosal and the rape of AAA.
He assails AAA’s
_______________
21 Rollo, p. 15.
22 Id., at p. 20.
23 CA Rollo, p. 70.
665
VOL. 658, OCTOBER 5, 2011 665
People vs. Laog
credibility, the prosecution’s main witness, and points out alleged inconsistencies
in her testimony. Appellant also contends that the prosecution failed to establish
that he carefully planned the execution of the crimes charged. According to him,
AAA’s narration that he waylaid them while walking along the rice paddies on their
way to apply for work negates evident premeditation since there was no evidence
that the said path was their usual route.
Appellant further contends that the trial court and CA erred in appreciating
the qualifying circumstance of abuse of superior strength. He argues that for abuse
of superior strength to be appreciated in the killing of Jennifer, the physical
attributes of both the accused and the victim should have been shown in order to
determine whether the accused had the capacity to overcome the victim physically
or whether the victim was substantially weak and unable to put up a defense.
Additionally, he attempts to cast doubt upon AAA’s testimony, arguing that it
lacked some details on how, after she was raped and stabbed by appellant, she was
still able to put on her clothes and crawl to her grandfather’s farm.
The appeal lacks merit.
Appellant principally attacks the credibility of prosecution witness AAA.
Jurisprudence has decreed that the issue of credibility of witnesses is “a question
best addressed to the province of the trial court because of its unique position of
having observed that elusive and incommunicable evidence of the witnesses’
deportment on the stand while testifying which opportunity is denied to the
appellate courts”24 and “absent any substantial reason which would justify the
reversal of the trial court’s assessments and conclusions, the reviewing court is
generally bound by the former’s findings, particularly when no significant facts and
P a g e 212 | 279
circumstances are shown to have been overlooked or disregarded which when Q: In what manner were you waylaid by Conrado Laog?
considered would have A: Conrado Laog hit me with the pipe on my head, sir.
_______________ xxxx
24 People v. Nieto, G.R. No. 177756, March 3, 2008, 547 SCRA 511, 524. Q: Where were you when you were hit?
666 A: We were walking along the rice puddies (sic), Your Honor.
666 SUPREME COURT REPORTS ANNOTATED Fiscal:
Q: And what happened to you when you were hit with the lead pipe by Conrado
People vs. Laog Laog?
affected the outcome of the case.”25 This rule is even more stringently applied if the A: I fell down (nabuwal) because I felt dizzy, sir.
appellate court concurred with the trial court.26 Q: Now, what happened next, if any?
Here, both the trial and appellate courts gave credence and full probative A: I heard Jennifer crying, sir.
weight to the testimony of AAA, the lone eyewitness to Jennifer’s killing and was Q: And you heard Jennifer but did you see her?
herself brutally attacked by appellant who also raped her. Appellant had not shown A: Yes, sir.
any sufficiently weighty reasons for us to disturb the trial court’s evaluation of the Q: Where was Conrado Laog when you heard Jennifer crying?
prosecution eyewitness’ credibility. In particular, we defer to the trial court’s A: He was beside me, sir.
firsthand observations on AAA’s deportment while testifying and its veritable Court:
assessment of her credibility, to wit: Q: How about Jennifer, where was she when you heard her crying?
“From the moment [AAA] took the stand, this Court has come to discern in her A: She was standing on the rice puddies, (sic), Your Honor.
the trepidations of a woman outraged who is about to recount the ordeal she had Fiscal:
gone through. She took her oath with trembling hands, her voice low and soft, Q: And what was Conrado Laog doing?
hardly audible. Face down, her eyes were constantly fixed on the floor as if avoiding A: He approached Jennifer, sir.
an eye contact with the man she was about to testify against. After a few questions Q: Then, what happened next?
in direct, the emotion building up inside her came to the fore and she burst into A: He hit Jennifer with the pipe, sir.
tears, badly shaken, unfit to continue any further with her testimony. Thus, in Q: And what happened to Jennifer?
deference to her agitated situation, this Court has to defer her direct-examination. A: She fell down, sir.668
When she came back, however, to continue with her aborted questioning, this time,
668 SUPREME COURT REPORTS ANNOTATED
composed and collected, direct and straightforward in her narration, all vestiges of
doubt on her credibility vanished.”27 People vs. Laog
Indeed, records bear out that AAA became so tense and nervous when she took Q: What did Conrado Laog do next?
the witness stand for the first time that the trial court had to cut short her initial A: He stabbed Jennifer, sir.
direct examination. However, during the next hearing she was able to narrate her Q: After Conrado Laog stabbed Jennifer, what happened next?
harrowing ordeal in a clear and straightforward manner, describing in detail how A: He covered Jennifer with grasses, sir.
appellant waylaid them and Q: And after that, what did Conrado Laog do?
_______________ A: He came back to me, sir.
25 People v. Dominguez, Jr., G.R. No. 180914, November 24, 2010, 636 SCRA Q: When Conrado Laog came back to you, what did you do, if any?
134, 161. A: He hit me with the pipe several times, sir.
26 Id. Q: And what happened to you?
27 CA Rollo, pp. 31-32. A: And he stabbed me on my face, sir.
667 Q: Then, what happened to you?
VOL. 658, OCTOBER 5, 2011 667 A: After that, he pulled down my jogging pants, sir. He removed my panty and
my blouse and my bra.
People vs. Laog Q: After that, what did he do next?
mercilessly hit and attacked her and Jennifer with a lead pipe and ice pick A: And then, he went on top of me, sir.
before raping her. We quote the pertinent portions of her testimony: Q: Then, what happened?
Q: During your previous testimony, Madam Witness, you said that you’re not A: He sucked my breast, sir.
able to reach your place of work on June 6, 2000, what is the reason why Q: And after that?
you did not reach your place of work? A: He was forcing his penis into my vagina, sir.
A: We were waylaid (hinarang) by Conrado Laog, sir.
CRIMINAL LAW | PENALTIES P a g e 213 | 279
 Q: Did he suc[c]eed in putting his penis into your vagina? appellant or to falsely implicate him in the commission of a crime. Thus, the logical
A: Yes, sir. conclusion is that the testimony is worthy of full faith and credence.31
Q: For how long did the accused Conrado Laog insert his penis into your vagina? In People v. Nieto,32 we reiterated that—
A: For quite sometime, sir. “It is an established jurisprudential rule that a mere denial, without any strong
Q: After that, what happened? evidence to support it, can scarcely overcome the positive declaration by the victim
A: After that, he stood up, sir. of the identity and involvement of appellant in the crimes attributed to him. The
Q: And where did he go? defense of alibi is likewise unavailing. Firstly, alibi is the weakest of all defenses,
A: After that, he covered me with grasses, sir. because it is easy to concoct and difficult to disprove. Unless substantiated by clear
Q: And after that, what did you do? and convincing proof, such defense is negative, self-serving, and undeserving of any
A: I fell unconscious, sir. weight in law. Secondly, alibi is unacceptable when there is a positive identification
Q: Now, if Conrado Laog is inside the courtroom, will you be able to point to of the accused by a credible witness. Lastly, in order that alibi might prosper, it is
him?669 not enough to prove that the accused has been somewhere else during the
VOL. 658, OCTOBER 5, 2011 669 commission of the crime; it must also be shown that it would have been impossible
for him to be anywhere within the vicinity of the crime scene.”
People vs. Laog Appellant does not dispute that he was near the vicinity of the crime on the
Interpreter: evening of June 6, 2000. In fact, during his cross-examination, appellant admitted
Witness is pointing to a man wearing an inmate’s uniform and when asked that his house was more or less only 100 meters from the crime scene. Thus, his
his name, answered: Conrado Laog. defense of alibi is not worthy of any credit for the added reason that he has not
x x x x28 shown that it was physically impossible for him to be at the scene of the crime at
On the other hand, appellant merely interposed the defense of denial and alibi. the time of its commission.
He claimed that at the time of the incident, he was at his house with his children In view of the credible testimony of AAA, appellant’s defenses of denial and
and nephew cooking dinner. His defense, however, cannot prevail over the alibi deserve no consideration. We stress that these weak defenses cannot stand
straightforward and credible testimony of AAA who positively identified him as the against the positive identification and categorical testimony of a rape victim. 33
perpetrator of the murder and rape. Time and again, we have held that positive _______________
identification of the accused, when categorical and consistent and without any 31 See People v. Malate, G.R. No. 185724, June 5, 2009, 588 SCRA 817, 827.
showing of ill motive on the part of the eyewitness testifying, should prevail over 32 Supra note 24 at pp. 527-528.
the alibi and denial of the appellant whose testimony is not substantiated by clear 33 People v. Orande, G.R. Nos. 141724-27, November 12, 2003, 415 SCRA 699,
and convincing evidence.29 AAA was firm and unrelenting in pointing to appellant 708.
as the one who attacked her and Jennifer, stabbing the latter to death before raping 671
AAA. It should be noted that AAA knew appellant well since they were relatives by
VOL. 658, OCTOBER 5, 2011 671
affinity. As correctly held by the CA, with AAA’s familiarity and proximity with the
appellant during the commission of the crime, her identification of appellant could People vs. Laog
not be doubted or mistaken. In fact, AAA, upon encountering appellant, did not run Appellant attempts to discredit AAA’s accusation of rape by pointing out that
away as she never thought her own uncle would harm her and her friend. Moreover, while she testified on being very weak that she even passed out after she was raped
the most natural reaction of victims of violence is to strive to see the appearance of by appellant, she nevertheless stated that when she crawled her way to her
the perpetrators of the crime and observe the manner in which the crime is being grandfather’s farm she was wearing her clothes. Appellant also contends that the
committed.30 There is no evidence to show any improper motive on the part of AAA prosecution should have presented the physician who examined AAA to prove her
to testify falsely against allegations that she was beaten and raped by appellant.
_______________ We are not persuaded.
28 TSN, June 20, 2001, pp. 3-5. Based on AAA’s account, appellant did not undress her completely—her blouse
29 People v. Cañada, G.R. No. 175317, October 2, 2009, 602 SCRA 378, 393. and bra were merely lifted up (“nililis”) while her undergarments were just pulled
30 People v. Honra, Jr., G.R. Nos. 136012-16, September 26, 2000, 341 SCRA down, which therefore explains why she still had her clothes on when she crawled
110, 127, citing People v. Pulusan, G.R. No. 110037, May 21, 1998, 290 SCRA 353, to her grandfather’s farm. Nonetheless, this matter raised by appellant is a minor
372. detail which had nothing to do with the elements of the crime of rape. Discrepancies
670 referring only to minor details and collateral matters—not to the central fact of the
670 SUPREME COURT REPORTS ANNOTATED crime—do not affect the veracity or detract from the essential credibility of
witnesses’ declarations, as long as these are coherent and intrinsically believable
People vs. Laog
CRIMINAL LAW | PENALTIES P a g e 214 | 279
on the whole.34 For a discrepancy or inconsistency in the testimony of a witness to
serve as a basis for acquittal, it must establish beyond doubt the innocence of the
appellant for the crime charged.35 It cannot be overemphasized that the credibility
of a rape victim is not diminished, let alone impaired, by minor inconsistencies in
her testimony.36
As to the fact that the physician who examined AAA at the hospital did not
testify during the trial, we find this not fatal to the prosecution’s case.
_______________
34 People v. Suarez, G.R. Nos. 153573-76, April 15, 2005, 456 SCRA 333, 345.
35 People v. Villarino, G.R. No. 185012, March 5, 2010, 614 SCRA 372, 387,
citing People v. Masapol, G.R. No. 121997, December 10, 2003, 417 SCRA 371, 377.
36 People v. Wasit, G.R. No. 182454, July 23, 2009, 593 SCRA 721, 729.
672
672 SUPREME COURT REPORTS ANNOTATED
People vs. Laog
It must be underscored that the foremost consideration in the prosecution of
rape is the victim’s testimony and not the findings of the medico-legal officer. In
fact, a medical examination of the victim is not indispensable in a prosecution for
rape; the victim’s testimony alone, if credible, is sufficient to convict. 37 Thus we
have ruled that a medical examination of the victim, as well as the medical
certificate, is merely corroborative in character and is not an indispensable element
for conviction in rape. What is important is that the testimony of private
complainant about the incident is clear, unequivocal and credible,38 as what we find
in this case.
While we concur with the trial court’s conclusion that appellant indeed was the
one who raped AAA and killed Jennifer, we find that appellant should not have
been convicted of the separate crimes of murder and rape. An appeal in a criminal
case opens the entire case for review on any question, including one not raised by
the parties.39 The facts alleged and proven clearly show that the crime committed
by appellant is rape with homicide, a special complex crime provided under Article
266-B, paragraph 5 of the Revised Penal Code, as amended by Republic Act (R.A.)
No. 8353.40
In People v. Larrañaga,41 this Court explained the concept of a special complex
crime, as follows:
_______________
37 People v. Cadap, G.R. No. 190633, July 5, 2010, 623 SCRA 655, 663,
citing People v. Espino, Jr., G.R. No. 176742, June 17, 2008, 554 SCRA 682, 700-
701.
38 People v. Tamano, G.R. No. 188855, December 8, 2010, 637 SCRA 672, 688,
citing People v. Arivan, G.R. No. 176065, April 22, 2008, 552 SCRA 448, 468-469.
39 People v. Madsali, G.R. No. 179570, February 4, 2010, 611 SCRA 596, 613-
614, citing Esqueda v. People, G.R. No. 170222, June 18, 2009, 589 SCRA 489, 506.
40 The Anti-Rape Law of 1997, which took effect on October 22, 1997.
41 G.R. Nos. 138874-75, February 3, 2004, 421 SCRA 530.
673
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VOL. 658, OCTOBER 5, 2011 673
People vs. Laog
“A discussion on the nature of special complex crime is imperative. Where the
law provides a single penalty for two or more component offenses, the
resulting crime is called a special complex crime. Some of the special complex
crimes under the Revised Penal Code are (1) robbery with homicide, (2) robbery
with rape, (3) kidnapping with serious physical injuries, (4) kidnapping with
murder or homicide, and (5) rape with homicide. In a special complex crime,
the prosecution must necessarily prove each of the component offenses
with the same precision that would be necessary if they were made the
subject of separate complaints. As earlier mentioned, R.A. No. 7659 amended
Article 267 of the Revised Penal Code by adding thereto this provision: “When the
victim is killed or dies as a consequence of the detention, or is raped, or is subjected
to torture or dehumanizing acts, the maximum penalty shall be imposed;[”] and
that this provision gives rise to a special complex crime. In the cases at bar,
particularly Criminal Case No. CBU-45303, the Information specifically alleges
that the victim Marijoy was raped “on the occasion and in connection” with her
detention and was killed “subsequent thereto and on the occasion thereof.”
Considering that the prosecution was able to prove each of the component offenses,
appellants should be convicted of the special complex crime of kidnapping and
serious illegal detention with homicide and rape. x x x”42 (Emphasis supplied.)
A special complex crime, or more properly, a composite crime, has its own
definition and special penalty in the Revised Penal Code, as amended. Justice
Regalado, in his Separate Opinion in the case of People v. Barros,43 explained that
composite crimes are “neither of the same legal basis as nor subject to the rules on
complex crimes in Article 48 [of the Revised Penal Code], since they do not consist
of a single act giving rise to two or more grave or less grave felonies [compound
crimes] nor do they involve an offense being a necessary means to commit another
[complex crime proper]. However, just like the regular complex crimes and the
present case of aggravated illegal possession of firearms, only a single penalty is
imposed for each of
_______________
42 Id., at p. 580.
43 G.R. Nos. 101107-08, June 27, 1995, 245 SCRA 312, 323-332.
674
674 SUPREME COURT REPORTS ANNOTATED
People vs. Laog
such composite crimes although composed of two or more offenses.”44
Article 266-B of the Revised Penal Code, as amended, provides only a single
penalty for the composite acts of rape and the killing committed by reason or on the
occasion of the rape.
“ART. 266-B. Penalties.—Rape under paragraph 1 of the next preceding
article shall be punished by reclusion perpetua.
Whenever the rape is committed with the use of a deadly weapon or by two or
more persons, the penalty shall be reclusion perpetua to death.
P a g e 215 | 279
 When by reason or on the occasion of the rape, the victim has become insane,
the penalty shall be reclusion perpetua to death.
When the rape is attempted and a homicide is committed by reason or on the
occasion thereof, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, homicide is committed,
the penalty shall be death.
x x x x” (Emphasis supplied.)
Considering that the prosecution in this case was able to prove both the rape of
AAA and the killing of Jennifer both perpetrated by appellant, he is liable for rape
with homicide under the above provision. There is no doubt that appellant killed
Jennifer to prevent her from aiding AAA or calling for help once she is able to run
away, and also to silence her completely so she may not witness the rape of AAA,
the original intent of appellant. His carnal desire having been satiated, appellant
purposely covered AAA’s body with grass, as he did earlier with Jennifer’s body, so
that it may not be easily noticed or seen by passersby. Appellant indeed thought
that the savage blows he had inflicted on AAA were enough to cause her death as
with Jennifer. But AAA survived and appellant’s barbaric deeds were soon enough
discovered.
_______________
44 Id., at pp. 328-329.
675
VOL. 658, OCTOBER 5, 2011 675
People vs. Laog
The facts established showed that the constitutive elements of rape with
homicide were consummated, and it is immaterial that the person killed in this
case is someone other than the woman victim of the rape. An analogy may be drawn
from our rulings in cases of robbery with homicide, where the component acts of
homicide, physical injuries and other offenses have been committed by reason or
on the occasion of robbery. In People v. De Leon,45 we expounded on the special
complex crime of robbery with homicide, as follows:
“In robbery with homicide, the original criminal design of the malefactor is to
commit robbery, with homicide perpetrated on the occasion or by reason of the
robbery. The intent to commit robbery must precede the taking of human life. The
homicide may take place before, during or after the robbery. It is only the result
obtained, without reference or distinction as to the circumstances, causes or modes
or persons intervening in the commission of the crime that has to be taken into
consideration. There is no such felony of robbery with homicide through reckless
imprudence or simple negligence. The constitutive elements of the crime, namely,
robbery with homicide, must be consummated.
It is immaterial that the death would supervene by mere accident; or
that the victim of homicide is other than the victim of robbery, or that two
or more persons are killed, or that aside from the homicide, rape, intentional
mutilation, or usurpation of authority, is committed by reason or on the occasion of
the crime. Likewise immaterial is the fact that the victim of homicide is one of the
robbers; the felony would still be robbery with homicide. Once a homicide is
committed by or on the occasion of the robbery, the felony committed is
CRIMINAL LAW | PENALTIES
robbery with homicide. All the felonies committed by reason of or on the
occasion of the robbery are integrated into one and indivisible felony of
robbery with homicide. The word “homicide” is used in its generic sense.
Homicide, thus, includes murder, parricide, and infanticide.”46 (Emphasis
supplied.)
_______________
45 G.R. No. 179943, June 26, 2009, 591 SCRA 178.
46 Id., at pp. 192-193, citing People v. Salazar, G.R. No. 99355, August 11,
1997, 277 SCRA 67; People v. Abuyen, G.R. No. 77285,
676
676 SUPREME COURT REPORTS ANNOTATED
People vs. Laog
In the special complex crime of rape with homicide, the term “homicide” is to be
understood in its generic sense, and includes murder and slight physical injuries
committed by reason or on occasion of the rape.47 Hence, even if any or all of the
circumstances (treachery, abuse of superior strength and evident premeditation)
alleged in the information have been duly established by the prosecution, the same
would not qualify the killing to murder and the crime committed by appellant is
still rape with homicide. As in the case of robbery with homicide, the aggravating
circumstance of treachery is to be considered as a generic aggravating circumstance
only. Thus we ruled in People v. Macabales:48
“Finally, appellants contend that the trial court erred in concluding that the
aggravating circumstance of treachery is present. They aver that treachery applies
to crimes against persons and not to crimes against property. However, we find
that the trial court in this case correctly characterized treachery as a generic
aggravating, rather than qualifying, circumstance. Miguel was rendered helpless
by appellants in defending himself when his arms were held by two of the attackers
before he was stabbed with a knife by appellant Macabales, as their other
companions surrounded them. In People v. Salvatierra, we ruled that
when alevosia (treachery) obtains in the special complex crime of robbery with
homicide, such treachery is to be regarded as a generic aggravating circumstance.
Robbery with homicide is a composite crime with its own definition and special
penalty in the Revised Penal Code. There is no special complex crime of
robbery with murder under the Revised Penal Code. Here, treachery
forms part of the circumstances proven concerning the actual commission
of the complex crime. Logi-
_______________
September 4, 1992, 213 SCRA 569, 582; People v. Ponciano, G.R. No. 86453,
December 5, 1991, 204 SCRA 627, 639; and People v. Mangulabnan, et al., 99 Phil.
992, 999 (1956).
47 People v. Nanas, G.R. No. 137299, August 21, 2001, 363 SCRA 452, 469-470,
citing People v. Penillos, G.R. No. 65673, January 30, 1992, 205 SCRA 546, 564
and People v. Sequiño, G.R. No. 117397, November 13, 1996, 264 SCRA 79, 101.
48 G.R. No. 111102, December 8, 2000, 347 SCRA 429.
677
VOL. 658, OCTOBER 5, 2011 677
P a g e 216 | 279
 People vs. Laog
cally it could not qualify the homicide to murder but, as generic
aggravating circumstance, it helps determine the penalty to be
imposed.”49 (Emphasis supplied.)
The aggravating circumstance of abuse of superior strength is considered
whenever there is notorious inequality of forces between the victim and the
aggressor that is plainly and obviously advantageous to the aggressor and
purposely selected or taken advantage of to facilitate the commission of the
crime.50 It is taken into account whenever the aggressor purposely used excessive
force that is out of proportion to the means of defense available to the person
attacked.51
In this case, as personally witnessed by AAA, appellant struck Jennifer in the
head with a lead pipe then stabbed her repeatedly until she was dead. Clearly, the
manner by which appellant had brutally slain Jennifer with a lethal weapon, by
first hitting her in the head with a lead pipe to render her defenseless and
vulnerable before stabbing her repeatedly, unmistakably showed that appellant
intentionally used excessive force out of proportion to the means of defense
available to his unarmed victim. As aptly observed by the appellate court:
“It has long been established that an attack made by a man with a deadly
weapon upon an unarmed and defenseless woman constitutes the circumstance of
abuse of that superiority which his sex and the weapon used in the act afforded
him, and from which the woman was unable to defend herself. Unlike in treachery,
where the victim is not given the opportunity to defend himself or repel the
aggression, taking advantage of superior strength does not mean that the victim
was completely defenseless. Abuse of superiority is determined by the excess of the
aggressor’s natural strength over
_______________
49 Id., at p. 442, citing People v. Salvatierra, G.R. No. 111124, June 20, 1996,
257 SCRA 489, 507 and People v. Vivas, G.R. No. 100914, May 6, 1994, 232 SCRA
238, 242.
50 See People v. Beduya, G.R. No. 175315, August 9, 2010, 627 SCRA 275, 284.
51 Id.
678
678 SUPREME COURT REPORTS ANNOTATED
People vs. Laog
that of the victim, considering the momentary position of both and the employment
of means weakening the defense, although not annulling it. By deliberately
employing deadly weapons, an ice pick and a lead pipe, [a]ccused-[a]ppellant clearly
took advantage of the superiority which his strength, sex and weapon gave him
over his unarmed victim. The accused-appellant’s sudden attack caught the victim
off-guard rendering her defenseless.”52
Abuse of superior strength in this case therefore is merely a generic
aggravating circumstance to be considered in the imposition of the penalty. The
penalty provided in Article 266-B of the Revised Penal Code, as amended,
is death. However, in view of the passage on June 24, 2006 of R.A. No. 9346,
entitled “An Act Prohibiting the Imposition of the Death Penalty in the Philippines”
CRIMINAL LAW | PENALTIES
the Court is mandated to impose on the appellant the penalty of reclusion
perpetua without eligibility for parole.53
The aggravating/qualifying circumstances of abuse of superior strength and use
of deadly weapon have greater relevance insofar as the civil aspect of this case is
concerned. While the trial court and CA were correct in holding that both the victim
of the killing (Jennifer) and the rape victim (AAA) are entitled to the award of
exemplary damages, the basis for such award needs further clarification.
Articles 2229 and 2230 of the Civil Code provide:
“Art. 2229. Exemplary or corrective damages are imposed, by way of example
or correction for the public good, in addition to the moral, temperate, liquidated or
compensatory damages.
Art. 2230. In criminal offenses, exemplary damages as a part of the civil
liability may be imposed when the crime was committed with one or more
aggravating circumstances. Such damages are separate and distinct from fines and
shall be paid to the offended party.”
_______________
52 Rollo, pp. 13-14.
53 People v. Villarino, supra note 35 at p. 389.
679
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People vs. Laog
In view of the presence of abuse of superior strength in the killing of Jennifer,
her heirs are entitled to exemplary damages pursuant to Article 2230. With respect
to the rape committed against AAA, Article 266-B of the Revised Penal Code, as
amended, provides that a man who shall have carnal knowledge of a woman
through force, threat or intimidation under Article 266-A (a), whenever such rape
is committed with the use of a deadly weapon or by two or more persons, the penalty
shall be reclusion perpetua to death. Since the use of a deadly weapon raises the
penalty for the rape, this circumstance would justify the award of exemplary
damages to the offended party (AAA) also in accordance with Article 2230.
Article 266-B likewise provides for the imposition of death penalty if the crime
of rape is committed with any of the aggravating/qualifying circumstances
enumerated therein. Among these circumstances is minority of the victim and her
relationship to the offender:
1) When the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, stepparent, guardian, relative by consanguinity
or affinity within the third civil degree, or the common law spouse of
the parent of the victim. (Emphasis supplied.)
AAA’s relationship to appellant, who is his uncle by affinity, was not alleged in
the information but admitted by appellant when he testified in court:
DIRECT EXAMINATION OF
CONRADO LAOG By:
Atty. Roque:
xxxx
Q Do you know a person by the name of [AAA]?
A Yes, sir.
P a g e 217 | 279
 Q Why do you know her?
A Because she is our neighbor. Her house is just adjacent to ours, sir.680
680 SUPREME COURT REPORTS ANNOTATED
People vs. Laog
Q How are you related to [AAA]?
A Her mother and my wife are sisters.
Q So she is your niece-in-law?
A Yes, sir.
x x x x54 (Emphasis supplied.)
The failure of the prosecution to allege in the information AAA’s relationship
to appellant will not bar the consideration of the said circumstance in the
determination of his civil liability. In any case, even without the attendance of
aggravating circumstances, exemplary damages may still be awarded where the
circumstances of the case show the “highly reprehensible or outrageous conduct of
the offender.” Citing our earlier ruling in the case of People v. Catubig,55 this Court
clarified in People v. Dalisay:56
“Prior to the effectivity of the Revised Rules of Criminal Procedure, courts
generally awarded exemplary damages in criminal cases when an aggravating
circumstance, whether ordinary or qualifying, had been proven to have attended
the commission of the crime, even if the same was not alleged in the information.
This is in accordance with the aforesaid Article 2230. However, with the
promulgation of the Revised Rules, courts no longer consider the aggravating
circumstances not alleged and proven in the determination of the penalty and in
the award of damages. Thus, even if an aggravating circumstance has been proven,
but was not alleged, courts will not award exemplary damages. Pertinent are the
following sections of Rule 110:
xxxx
Nevertheless, People v. Catubig laid down the principle that courts may
still award exemplary damages based on the aforementioned Article 2230,
even if the aggravating circumstance has not been alleged, so long as it
has been proven, in criminal cases instituted before the effectivity of the
Revised Rules which remained pending thereafter. Catubig reasoned
_______________
54 TSN, December 4, 2002, p. 3.
55 G.R. No. 137842, August 23, 2001, 363 SCRA 621.
56 G.R. No. 188106, November 25, 2009, 605 SCRA 807.
681
VOL. 658, OCTOBER 5, 2011 681
People vs. Laog
that the retroactive application of the Revised Rules should not adversely affect the
vested rights of the private offended party.
Thus, we find, in our body of jurisprudence, criminal cases, especially those
involving rape, dichotomized: one awarding exemplary damages, even if an
aggravating circumstance attending the commission of the crime had not been
sufficiently alleged but was consequently proven in the light of Catubig; and
another awarding exemplary damages only if an aggravating circumstance has
CRIMINAL LAW | PENALTIES
both been alleged and proven following the Revised Rules. Among those in the first
set are People v. Laciste, People v. Victor, People v. Orilla, People v.
Calongui, People v. Magbanua, People of the Philippines v. Heracleo Abello y
Fortada, People of the Philippines v. Jaime Cadag Jimenez, and People of the
Philippines v. Julio Manalili. And in the second set are People v. Llave, People of
the Philippines v. Dante Gragasin y Par, and People of the Philippines v. Edwin
Mejia. Again, the difference between the two sets rests on when the criminal case
was instituted, either before or after the effectivity of the Revised Rules.
xxxx
Nevertheless, by focusing only on Article 2230 as the legal basis for the grant
of exemplary damages—taking into account simply the attendance of an
aggravating circumstance in the commission of a crime, courts have lost sight of
the very reason why exemplary damages are awarded. Catubig is enlightening on
this point, thus—
Also known as “punitive” or “vindictive” damages, exemplary or
corrective damages are intended to serve as a deterrent to serious wrong
doings, and as a vindication of undue sufferings and wanton invasion of
the rights of an injured or a punishment for those guilty of outrageous
conduct. These terms are generally, but not always, used interchangeably. In
common law, there is preference in the use of exemplary damages when the award
is to account for injury to feelings and for the sense of indignity and
humiliation suffered by a person as a result of an injury that has been
maliciously and wantonly inflicted, the theory being that there should be
compensation for the hurt caused by the highly reprehensible conduct of the
defendant—associated with such circumstances as willfulness, wantonness,
malice, gross negligence or recklessness, oppression, insult or fraud or gross
fraud—that intensifies the injury. The terms punitive or vindictive damages
are often used to refer to
682
682 SUPREME COURT REPORTS ANNOTATED
People vs. Laog
those species of damages that may be awarded against a person to punish
him for his outrageous conduct. In either case, these damages are
intended in good measure to deter the wrongdoer and others like him
from similar conduct in the future.
Being corrective in nature, exemplary damages, therefore, can be
awarded, not only in the presence of an aggravating circumstance, but
also where the circumstances of the case show the highly reprehensible
or outrageous conduct of the offender. In much the same way as Article 2230
prescribes an instance when exemplary damages may be awarded, Article 2229,
the main provision, lays down the very basis of the award. Thus, in People v.
Matrimonio, the Court imposed exemplary damages to deter other fathers with
perverse tendencies or aberrant sexual behavior from sexually abusing their own
daughters. Also, in People v. Cristobal, the Court awarded exemplary damages on
account of the moral corruption, perversity and wickedness of the accused in
sexually assaulting a pregnant married woman. Recently, in People of the
P a g e 218 | 279
Philippines v. Cristino Cañada, People of the Philippines v. Pepito Neverio and The
People of the Philippines v. Lorenzo Layco, Sr., the Court awarded exemplary
damages to set a public example, to serve as deterrent to elders who abuse and
corrupt the youth, and to protect the latter from sexual abuse.
It must be noted that, in the said cases, the Court used as basis Article 2229,
rather than Article 2230, to justify the award of exemplary damages. Indeed, to
borrow Justice Carpio-Morales’ words in her separate opinion in People of the
Philippines v. Dante Gragasin y Par, “[t]he application of Article 2230 of the Civil
Code strictissimi juris in such cases, as in the present one, defeats the underlying
public policy behind the award of exemplary damages—to set a public example or
correction for the public good.”57 (Emphasis supplied.)
In this case, the brutal manner by which appellant carried out his lustful design
against his niece-in-law who never had an inkling that her own uncle would do any
harm to her and her friend, justified the award of exemplary damages. Appellant’s
sudden and fierce attack on AAA—hitting her several
_______________
57 Id., at pp. 817-821.
683
VOL. 658, OCTOBER 5, 2011 683
People vs. Laog
times on the head with a lead pipe before stabbing her face until she fell down,
hurriedly lifting her bra and blouse and pulling down her undergarments, raping
her while she was in such a defenseless position, covering her body with grasses
and abandoning her to die in a grassy field—was truly despicable and outrageous.
Such vicious assault was made even more reprehensible as it also victimized
Jennifer, who sustained more stab wounds and beatings, causing her violent death.
Article 2229 of the Civil Code allows the award of exemplary damages in order to
deter the commission of similar acts and to allow the courts to forestall behavior
that would pose grave and deleterious consequences to society. 58 In line with
current jurisprudence, the amount of P30,000 each for AAA and the heirs of
Jennifer as exemplary damages was correctly awarded by the trial court.
We also affirm the trial court and CA in ordering appellant to pay the heirs of
Jennifer Patawaran-Rosal the amounts of P50,000 as moral damages. In cases of
murder and homicide, the award of moral damages is mandatory, without need of
allegation and proof other than the death of the victim.59 Anent the award of civil
indemnity, the same is increased to P75,000 to conform with recent
jurisprudence.60 As to expenses incurred for the funeral and burial of Jennifer, the
CA correctly awarded her heirs the amount of P25,000 as actual damages, said
amount having been stipulated by the parties during the trial.
Lastly, we affirm the award of P50,000 to AAA as civil indemnity for the crime
of rape, as well as the award of P50,000 as moral damages. Civil indemnity ex
delicto is mandatory upon a finding of the fact of rape while moral damages are
awarded upon such finding without need of further proof,
_______________
58 People v. Villarino, supra note 35 at p. 390.
59 People v. Domingo, G.R. No. 184343, March 2, 2009, 580 SCRA 436, 457.
CRIMINAL LAW | PENALTIES
60 People v. Nazareno, G.R. No. 180915, August 9, 2010, 627 SCRA 383, 393.
684
684 SUPREME COURT REPORTS ANNOTATED
People vs. Laog
because it is assumed that a rape victim has actually suffered moral injuries
entitling the victim to such award.61
WHEREFORE, the appeal is DISMISSED for lack of merit. The March 21, 2007
Decision of the Court of Appeals in CA-G.R. CR HC No. 00234 is AFFIRMED with
MODIFICATIONS. Accused-appellant Conrado Laog y Ramin is hereby found
GUILTY beyond reasonable doubt of Rape With Homicide under Article 266-B of
the Revised Penal Code, as amended by R.A. No. 8353, and is accordingly sentenced
to suffer the penalty of reclusion perpetua without eligibility for parole.
Accused-appellant is hereby ordered to pay the heirs of Jennifer Patawaran-
Rosal P75,000 as civil indemnity ex delicto, P50,000 as moral damages, P25,000 as
actual damages and P30,000 as exemplary damages. He is further ordered to pay
to the victim AAA the sums of P50,000 as civil indemnity ex delicto, P50,000 as
moral damages and P30,000 as exemplary damages.
With costs against the accused-appellant.
SO ORDERED.
Corona (C.J., Chairperson), Leonardo-De Castro, Bersamin and Del Castillo,
JJ., concur.
Appeal dismissed, judgment affirmed with modifications.
Notes.—Distinct penalties prescribed by law in special complex crimes is in
recognition of the primacy given to criminal intent over the overt acts that are done
to achieve that intent. (Vitug, J., Separate opinion in People vs. Escote, Jr., 400
SCRA 603 [2003])
Even if two or more persons are killed and a woman is raped and physical
injuries are inflicted on another, on the occasion or by reason of robbery, there is
only one special
_______________
61 Supra note 38 at p. 475.
685
VOL. 658, OCTOBER 5, 2011 685
People vs. Laog
complex crime of robbery with homicide. (People vs. Daniela, 401 SCRA 519 [2003])
Where the law provides a single penalty for two or more component offenses,
the resulting crime is called a special complex crime. (People vs. Larrañaga, 421
SCRA 530 [2004])
——o0o——
G.R. No. 175939. April 3, 2013.*
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CHAD
MANANSALA y LAGMAN, accused-appellant.
Criminal Law; Dangerous Drugs Act; Illegal Sale of Marijuana; The Supreme
Court held as prevailing the doctrine that the illegal sale of marijuana absorbs the
illegal possession of marijuana, except if the seller was also apprehended in the
illegal possession of another quantity of marijuana not covered by or not included
P a g e 219 | 279
in the illegal sale, and the other quantity of marijuana was probably intended for
some future dealings or use by the accused.—For sure,
_______________
** Per Raffle dated March 13, 2013.
* FIRST DIVISION.
71
VOL. 695, APRIL 3, 2013 71
People vs. Manansala
there have been many occasions in which the Court has found an accused
charged with the illegal sale of marijuana in violation of Section 4 guilty instead of
the illegal possession of marijuana in violation of Section 8. In the oft-cited case
of People v. Lacerna, 278 SCRA 561 (1997), the Court held as prevailing the
doctrine that the illegal sale of marijuana absorbs the illegal possession
of marijuana, except if the seller was also apprehended in the illegal possession of
another quantity of marijuana not covered by or not included in the illegal sale,
and the other quantity of marijuana was probably intended for some future
dealings or use by the accused. The premise used in Lacerna was that the illegal
possession, being an element of the illegal sale, was necessarily included in the
illegal sale.
Same; Same; Same; Illegal Possession of Dangerous Drugs; The involvement
of a single object in both the illegal sale as the crime charged and the illegal
possession as the crime proved is indispensable, such that only the prohibited drugs
alleged in the information to be the subject of the illegal sale is considered competent
evidence to support the conviction of the accused for the illegal possession.—The
involvement of a single object in both the illegal sale as the crime charged and the
illegal possession as the crime proved is indispensable, such that only the
prohibited drugs alleged in the information to be the subject of the illegal sale is
considered competent evidence to support the conviction of the accused for the
illegal possession. As such, the illegal possession is either deemed absorbed by or
is considered a necessary element of the illegal sale. On the other hand, any other
illegal substance found in the possession of the accused that is not part of the
subject of the illegal sale should be prosecuted under a distinct and separate
information charging illegal possession; otherwise, the fundamental right of the
accused to be informed of the nature and cause of the accusation against him would
be flagrantly violated.
Remedial Law; Evidence; Variance Between Allegations and Proof; The rule
is that when there is a variance between the offense charged in the complaint or
information, and that proved or established by the evidence, and the offense as
charged necessarily includes the offense proved, the accused shall be convicted of the
offense proved included in that which is charged.—The CA correctly declared that
the illegal possession of marijuana was “a crime that is necessarily included in the
crime of drug pushing or dealing, for which the ac-
72
72 SUPREME COURT REPORTS ANNOTATED
People vs. Manansala
CRIMINAL LAW | PENALTIES
cused have been charged with.” The right of Manansala to be informed of the
nature and cause of the accusation against him enunciated in Section 14(2), Article
III of the 1987 Constitution was not violated simply because the information had
precisely charged him with selling, delivering, giving away and distributing more
or less 750 grams of dried marijuana leaves. Thereby, he was being sufficiently
given notice that he was also to be held to account for possessing more or less 750
grams of dried marijuana leaves. As Lacerna and similar rulings have explained,
the crime of illegal sale of marijuana defined and punished under Section 4 of
Republic Act No. 6425, as amended, implied the prior possession of the marijuana.
As such, the crime of illegal sale included or absorbed the crime of illegal
possession. The rule is that when there is a variance between the offense charged
in the complaint or information, and that proved or established by the evidence,
and the offense as charged necessarily includes the offense proved, the accused
shall be convicted of the offense proved included in that which is charged. According
to Section 5, Rule 120, Rules of Court (1985), the rule then applicable, an offense
charged necessarily includes that which is proved, when some of the essential
elements or ingredients of the former, as this is alleged in the complaint or
information, constitute the latter.
APPEAL from a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
The Solicitor General for plaintiff-appellee.
Public Attorney’s Office for accused-appellant.
BERSAMIN, J.:
The due recognition of the constitutional right of an accused to be informed of
the nature and cause of the accusation through the criminal complaint or
information is decisive of whether his prosecution for a crime stands or not. The
right is not transgressed if the information sufficiently alleges facts and omissions
constituting an offense that includes the offense established to have been
committed by the accused.73
VOL. 695, APRIL 3, 2013 73
People vs. Manansala
The Case
Chad Manansala y Lagman seeks to reverse the decision promulgated on July
26, 2006, whereby the Court of Appeals (CA)1 affirmed with modification his
conviction for the illegal possession and control of 750 grams of
dried marijuana leaves in violation of Section 8 of Republic Act No. 6425
(Dangerous Drugs Act of 1972) that the Regional Trial Court (RTC), Branch 74,
Olongapo City had handed down through its decision dated February 1,
2000,2 sentencing him to suffer the penalties of “reclusion perpetua maximum or
imprisonment from thirty (30) years and one (1) day to forty (40) years and to pay
the fine of Seven Hundred Fifty (P750,000.00) Thousand Pesos, with subsidiary
imprisonment.”
P a g e 220 | 279
 Antecedents were submitted to the PNP Crime Laboratory in Camp Olivas, San Fernando,
Pampanga for qualitative examination.
The information filed on October 20, 1994 alleged: _______________
That on or about the nineteenth (19th) day of October, 1994, in the City of 4 Id., at p. 154.
Olongapo, Philippines and within the jurisdiction of this Honorable Court, the 5 Id., at p. 155.
above-named accused, without being lawfully authorized did then and there 6 Id., at p. 8.
willfully, unlawfully and knowingly engage in selling, delivering, giving away to 75
another and distributing more or less 750 grams or ¾ kilo of marijuana dried leaves VOL. 695, APRIL 3, 2013 75
placed in a small wooden box inside the cabinet, which are prohibited drugs, found
in his possession and control. People vs. Manansala
CONTRARY TO LAW.3 The PNP Crime Laboratory later issued Technical Report No. D-396-94,7 to wit:
To substantiate the charge, the Prosecution showed the following. SPECIMEN SUBMITTED:
_______________ Spmn “A” – One (1) big transparent plastic bag containing two (2) rectangular
1 Rollo, pp. 3-14; penned by Associate Justice Josefina Guevara-Salonga bricks of dried suspected MARIJUANA fruiting tops having a total weight of seven
(retired), with Associate Justice Aurora Santiago-Lagman (retired) and Associate hundred fifty five (755) grams.
Justice Normandie B. Pizarro concurring. Spmn “B” – One (1) medium size plastic bag containing dried suspected
2 Records, pp. 239-243. MARIJUANA fruiting tops weighing 9.045 grams. x x x.
3 Id., at p. 1. PURPOSE OF LABORATORY EXAMINATION:
74 To determine the presence of any prohibited and/or regulated drug in the above-
stated specimen. x x x.
74 SUPREME COURT REPORTS ANNOTATED
FINDINGS:
People vs. Manansala Qualitative examination conducted on the above-stated specimen gave POSITIVE
On October 18, 1994 the Philippine National Police in Olongapo City (PNP) result for MARIJUANA, a prohibited drug. x x x.
conducted a test-buy operation against Manansala, a suspected dealer CONCLUSION:
of marijuana. On the same date, following the test-buy, the PNP applied for and Spmns “A” and “B” – contain MARIJUANA, a prohibited drug.8
obtained a search warrant from the RTC, Branch 72, Olongapo City (Search Manansala pleaded not guilty on November 22, 1994.9
Warrant No. 8-94) to authorize the search for and seizure of prohibited drugs in On January 4, 1995, First Asst. City Prosecutor Mario F. Manalansan filed a
Manansala’s residence located at No. 55 Johnson Extension, Barangay East Bajac motion for the admission of an amended information, ostensibly to modify the
Bajac, Olongapo City.4 SPO4 Felipe P. Bolina and other elements of the PNP, offense charged from illegal sale of prohibited drugs under Section 4 of Republic
accompanied by Barangay Chairman Reynaldo Manalang of Barangay East Bajac Act No. 6425 to illegal possession of prohibited drugs under Section 8 of the same
Bajac, conducted the search of Manansala’s house at around 5:30 a.m. on October law.10 But the RTC did not act on the motion.
19, 1994. The search yielded the 750 grams of dried marijuana leaves subject of the _______________
information, which the search team recovered from a wooden box placed inside a 7 Id., at pp. 251-252.
8 Id., at p. 251.
cabinet. Also seized was the amount of P655.00 that included the two marked
9 Id., at p. 14.
P50.00 bills bearing serial numbers SNKJ812018 and SNMN426747 used during
10 Id., at pp. 21-22.
the test buy.5
76
All the seized articles were inventoried, and Manansala himself signed the
certification to that effect, along with his father, Jose Manansala, 76 SUPREME COURT REPORTS ANNOTATED
and Barangay Captain Manalang.6 The certification listed the following seized People vs. Manansala
articles, to wit: (a) one kilo, more or less, of suspected dried marijuana leaves; (b) Nonetheless, the trial proceeded, with the Prosecution establishing the matters
rolling paper; and (c) money amounting to P655.00. earlier summarized.
SPO4 Bolina and his team brought Manansala to Camp Cabal in Olongapo In his turn, Manansala denied the charge, alleging that he had been the victim
City, where they turned over the seized articles to the evidence custodian, SPO2 of a frame-up. His version follows.
Marcelino R. Sapad. At around 8:20 a.m. of October 20, 1994, the seized articles On October 19, 1994, military men clad in civilian attire arrived at his house
and arrested him without any warrant, and brought him to an office he referred to

CRIMINAL LAW | PENALTIES P a g e 221 | 279

simply as S2, then to a club located on Magsaysay Street in Olongapo City known SO ORDERED.12
as Dorris 2. His captors mugged and then detained him when he refused to admit
the sale and possession of marijuana. They turned down his request to be brought Ruling of the CA
to a hospital for the treatment of the injuries he thereby sustained. As of the time
of his testimony, he conceded that he could not identify his captors and whoever On intermediate appeal, the CA reviewed the conviction upon the following
had maltreated him, except SPO4 Bolina whom he recognized in court when the issues, namely:
latter testified at the trial.11 1. That the conviction, being anchored on evidence procured by virtue
of an invalid warrant, was erroneous;
Decision of the RTC 2. That the RTC erred in convicting the accused for illegal possession
of prohibited drug on the misplaced and
As stated, the RTC convicted Manansala for illegal possession of marijuana in _______________
violation of Section 8 of Republic Act No. 6425, holding thus: 12 Records, pp. 242-243.
The Information to which accused pleaded “not guilty” charges that accused 76
willfully, unlawfully and knowingly x x x engage in selling, delivering, giving away 76 SUPREME COURT REPORTS ANNOTATED
to another and distributing x x x falling under the more embracing term known as
People vs. Manansala
“drug pushing”. The alleged act of allegedly knowingly selling or pushing prohibited
inaccurate theory that the offense in violation of Section 8 of Republic Act
drugs by the accused was however, not sufficiently proven. The member of the team
No. 6425 was necessarily included in the offense in violation of Section 4 of
who is alleged to have acted as a poseur-buyer of the illegal stuff from the accused
Republic Act No. 6425; and
was not presented as a witness, hence, the testimony of SPO4 Felipe Bolina, to the
3. That the RTC overlooked, misinterpreted, misapplied and
effect that during the surveillance conducted prior to the application of the search
warrant, a member of the team acting as poseur buyer was able to misrepresented facts and evidences of substance and importance that, if
_______________ weighed, assayed and considered were enough to acquit the accused.13
11 Rollo, p. 6. On July 26, 2006, the CA promulgated its assailed decision, affirming the
77 conviction subject to modification, viz.:
VOL. 695, APRIL 3, 2013 77 WHEREFORE, the foregoing considered, the appeal is hereby DISMISSED and
the assailed Decision AFFIRMED with MODIFICATION that the accused-
People vs. Manansala appellant is sentenced to suffer the penalty of reclusion perpetua and to pay a fine
buy marijuana from the accused, cannot be given weight, being hearsay. of seven hundred fifty thousand pesos (P750,000.00) with subsidiary
However, the fact that the enforcing team where witness Bolina is a member, imprisonment.
was able to find marijuana leaves in the custody, possession and control of the Accordingly, the prohibited drugs confiscated from the appellant are hereby
accused, in the course of the enforcement of the search warrant and has been ordered transmitted to the Philippine Drug Enforcement Agency (PDEA) through
established by the prosecution beyond reasonable doubt, without controversion but the Dangerous Drugs Board for proper disposition. Without pronouncement as to
the denial of the accused, which like alibi, is the weakest defense, this Court is costs.
convinced that accused is guilty instead of violating Section 8, Article II of the SO ORDERED.14
Dangerous Drugs Act as amended, a crime that is necessarily included in the crime Hence, this appeal, in which Manansala reiterates the errors he already
of drug pushing or dealing, for which the accused have been charged with. In light assigned before the CA.
of these circumstances, this Court has no option that to find accused guilty and
liable for the crime proved. Since the date of the commission of the crime as proved
Ruling
is October 19, 1994, the provisions of Republic Act No. 7659, in so far as the
imposable penalty is concerned, will find application.
The appeal lacks merit.
WHEREFORE, finding accused Chad Manansala y Lagman, GUILTY of
Violation of Section 8, Article II of Republic Act No. 6425 as amended by Republic The information alleged that “on or about the nineteenth (19th) day of October,
Act No. 7659, he is hereby sentenced to suffer the penalty of reclusion 1994, in the City of Olongapo, Philippines and within the jurisdiction of this
perpetua maximum or imprisonment from thirty (30) years and one (1) day to forty Honorable Court, the above-named accused, without being lawfully authorized did
(40) years and to pay the fine of Seven Hundred Fifty (P750,000.00) Thousand then and there willfully, unlawfully and knowingly engage in selling, delivering,
Pesos, with subsidiary imprisonment. giving away to another and distributing
Costs de oficio. _______________
CRIMINAL LAW | PENALTIES P a g e 222 | 279
 13 CA Rollo, p. 43.
14 Id., at pp. 142-143.
79
VOL. 695, APRIL 3, 2013 79
People vs. Manansala
more or less 750 grams or ¾ kilo of marijuana dried leaves placed in a small wooden
box inside the cabinet, which are prohibited drugs, found in his possession and
control.”
The crime thereby charged was a violation of Section 4 of Republic Act No. 6425,
as amended by Republic Act No. 7659,15 which provides:
Section 4. Sale, Administration, Delivery, Distribution and Transportation of
Prohibited Drugs.―The penalty of reclusion perpetua to death and a fine ranging
from five hundred thousand pesos to ten million pesos shall be imposed upon any
person who, unless authorized by law, shall sell, administer, deliver, give away to
another, distribute, dispatch in transit or transport any prohibited drug, or shall
act as a broker in any such transactions.
Arraigned under such information, Manansala pleaded not guilty to it. But
instead of finding him guilty of the crime charged after trial, the RTC convicted
him for a violation of Section 8, of Republic Act No. 6425, as amended by Republic
Act No. 7659, which states:
Section 8. Possession or Use of Prohibited Drugs.―The penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand pesos to ten
million pesos shall be imposed upon any person who, unless authorized by law,
shall possess or use any prohibited drug subject to the provisions of Section 20
hereof.
On appeal, Manansala assigned as one of the reversible errors committed by
the RTC that the trial court had erred in convicting him for illegal possession of
prohibited drugs on the misplaced and inaccurate theory that the offense of illegal
possession of marijuana in violation of Section 8 was neces-
_______________
15 Republic Act No. 7659, entitled An Act To Impose The Death Penalty On
Certain Heinous Crimes, Amending For That Purpose The Revised Penal Code, As
Amended, Other Special Penal Laws, And For Other Purposes, took effect on
December 31, 1993.
80
80 SUPREME COURT REPORTS ANNOTATED
People vs. Manansala
sarily included in the offense of illegal sale of marijuana in violation of Section 4.
The CA disagreed with Manansala, however, and held that his conviction for
the illegal possession of marijuana in violation of Section 8 under the information
that had alleged the illegal sale of marijuana under Section 4 was proper, giving
its reasons as follows:
xxxx
Indispensable in every prosecution for the illegal sale of marijuana, a
prohibited drug, is the submission of proof that the sale of the illicit drug took place
CRIMINAL LAW | PENALTIES
between the poseur-buyer and the seller thereof, coupled with the presentation in
court of the corpus delicti as evidence. The element of sale must be unequivocally
established in order to sustain a conviction. In the case before Us, the trial court
correctly held that the prosecution failed to establish, much less adduce proof, that
accused-appellant was indeed guilty of the offense of illegal sale of marijuana. But
it is beyond doubt that he was found in possession of the same.
While no conviction for the unlawful sale of prohibited drugs may be
had under the present circumstances, the established principle is that
possession of marijuana is absorbed in the sale thereof, except where the
seller is further apprehended in possession of another quantity of the
prohibited drugs not covered by or included in the sale and which are
probably intended for some future dealings or use by the seller. In the
case before Us, it has been satisfactorily ascertained that the bricks
of marijuana confiscated from accused-appellant were the same
prohibited drugs subject of the original Information. In this light, We find
that the court a quo committed no reversible error in convicting the
accused-appellant of illegal possession of dangerous drugs under Section
8, Article II of the Dangerous Drugs Act of 1972, as amended.
Again, it should be stressed that the crime of unlawful sale
of marijuana penalized under Section 4 of RA 6425 necessarily includes
the crime of unlawful possession thereof. As borne by the records, it has been
sufficiently proven beyond any doubt that the lawful search conducted at the house
of the accused
81
VOL. 695, APRIL 3, 2013 81
People vs. Manansala
yielded a total of 764.045 grams marijuana dried leaves as verified by the PNP
Forensic Chemist. Thus, on the face of the positive testimony of the prosecution
witness and the presentation of the corpus delicti, it is indubitable that a crime had
in fact been committed and that accused-appellant was the author of the same.16
xxxx
To properly resolve the appeal, therefore, it is necessary to determine whether
the conviction of Manansala for a violation of Section 8, which the information did
not allege, instead of for a violation of Section 4, which the information alleged, was
not in violation of his constitutional right to be informed of the nature and cause of
the accusation brought against him.
For sure, there have been many occasions in which the Court has found an
accused charged with the illegal sale of marijuana in violation of Section 4 guilty
instead of the illegal possession of marijuana in violation of Section 8. In the oft-
cited case of People v. Lacerna,17 the Court held as prevailing the doctrine that the
illegal sale of marijuana absorbs the illegal possession of marijuana, except if the
seller was also apprehended in the illegal possession of another quantity
of marijuana not covered by or not included in the illegal sale, and the other
quantity of marijuana was probably intended for some future dealings or use by
the accused. The premise used in Lacerna was that the illegal possession, being an
P a g e 223 | 279
element of the illegal sale, was necessarily included in the illegal sale. The Court
observed thusly:
In People vs. Manzano, the Court identified the elements of illegal sale of
prohibited drugs, as follows: (1) the accused sold and delivered a prohibited drug to
another, and (2) he knew that what he had sold and delivered was a dangerous
drug. Although it did not expressly state it, the Court stressed delivery, which
implies prior
_______________
16 Supra note 1, at pp. 10-11 (bold emphasis supplied).
17 G.R. No. 109250, September 05, 1997, 278 SCRA 561.
82
82 SUPREME COURT REPORTS ANNOTATED
People vs. Manansala
possession of the prohibited drugs. Sale of a prohibited drug can never be
proven without seizure and identification of the prohibited drug, affirming that
possession is a condition sine qua non.
It being established that illegal possession is an element of and is necessarily
included in the illegal sale of prohibited drugs, the Court will thus determine
appellant’s culpability under Section 8.
From the penal provision under consideration and from the cases adjudicated,
the elements of illegal possession of prohibited drugs are as follows: (a) the accused
is in possession of an item or object which is identified to be a prohibited drug; (b)
such possession is not authorized by law; and (c) the accused freely and consciously
possessed the prohibited drug.18
In all the convictions premised on the situation described in Lacerna, however,
the involvement of a single object in both the illegal sale as the crime charged and
the illegal possession as the crime proved is indispensable, such that only the
prohibited drugs alleged in the information to be the subject of the illegal sale is
considered competent evidence to support the conviction of the accused for the
illegal possession. As such, the illegal possession is either deemed absorbed by or
is considered a necessary element of the illegal sale. On the other hand, any other
illegal substance found in the possession of the accused that is not part of the
subject of the illegal sale should be prosecuted under a distinct and separate
information charging illegal possession; otherwise, the fundamental right of the
accused to be informed of the nature and cause of the accusation against him would
be flagrantly violated.
It is true that there was an error in the information’s statement of the facts
essential to properly describe the offense being charged against Manansala as that
of illegal possession of marijuana; and that the error became known to the
Prosecution, leading Prosecutor Manalansan to himself file the motion for the
admission of the amended information dated
_______________
18 Id., at p. 579.
83
CRIMINAL LAW | PENALTIES
VOL. 695, APRIL 3, 2013 83
People vs. Manansala
January 3, 1995.19 In the motion, Prosecutor Manalansan manifested that the
information as filed charged a violation of Section 4; and that during the
preliminary investigation, he had concluded that Manansala should have been
charged with a violation of Section 8 instead of a violation of Section 4 as far as the
750 grams of dried marijuana leaves seized from his possession during the
implementation of Search Warrant No. 8-94 was concerned. The distinct and
separate nature of the 750 grams of marijuana leaves from the quantity
of marijuana worth P100.00 that was the object of the test buy became all the more
evident in Prosecutor Manalansan’s letter dated December 28, 1994 addressed to
City Prosecutor Prudencio B. Jalandoni.20 There, Prosecutor Manalansan stated
that the 750 grams of marijuana dried leaves had been seized from the possession
Manansala on October 19, 1994 by virtue of the search warrant, while the
attributed illegal sale of marijuana had happened on October 18, 1994 during the
test buy conducted to support the application of the search warrant. The letter
specifically stated:
xxxx
3. The two incidents, the sale on 18 October 1994 and the seizure on 19 October
1994 are separate incidents giving rise to two distinct offenses;
4. We cannot assume that the accused was engaged in the “sale of prohibited
drugs” on 19 October 1994 because he was engaged in it before. There is no
evidence to show that the accused was engaged in the sale, administration,
delivery, distribution and transportation of drugs as provided under Section
4;
5. The two (2) P50.00 bills are not enough to prove that the accused was engaged
in selling the 750 grams of marijuana leaves. They can prove the sale on 18
October 1994
_______________
19 Records, pp. 21-22.
20 Records, p. 25.
84
84 SUPREME COURT REPORTS ANNOTATED
People vs. Manansala
but cannot qualify his possession of the 750 grams of the drugs.
xxxx
Nonetheless, the conviction of Manansala stands.
The CA correctly declared that the illegal possession of marijuana was “a crime
that is necessarily included in the crime of drug pushing or dealing, for which the
accused have been charged with.” The right of Manansala to be informed of the
nature and cause of the accusation against him enunciated in Section 14(2), Article
III of the 1987 Constitution21 was not violated simply because the information had
precisely charged him with selling, delivering, giving away and distributing more
or less 750 grams of dried marijuana leaves. Thereby, he was being sufficiently
P a g e 224 | 279
given notice that he was also to be held to account for possessing more or less 750
grams of dried marijuana leaves. As Lacerna and similar rulings have explained,
the crime of illegal sale of marijuana defined and punished under Section 4 of
Republic Act No. 6425, as amended, implied the prior possession of the marijuana.
As such, the crime of illegal sale included or absorbed the crime of illegal
possession. The rule is that when there is a variance between the offense charged
in the complaint or information, and that proved or established by the evidence,
and the offense as charged necessarily includes the offense
_______________
21 Section 14. (1) No person shall be held to answer for a criminal offense
without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until
the contrary is proved, and shall enjoy the right to be heard by himself and counsel,
to be informed of the nature and cause of the accusation against him, to have a
speedy, impartial, and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has been duly notified
and his failure to appear is unjustifiable.
22 Section 4, Rule 120, Rules of Court (1988).
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People vs. Manansala
proved, the accused shall be convicted of the offense proved included in that which
is charged.22 According to Section 5, Rule 120, Rules of Court (1985), the rule then
applicable, an offense charged necessarily includes that which is proved, when
some of the essential elements or ingredients of the former, as this is alleged in the
complaint or information, constitute the latter.
WHEREFORE, the Court AFFIRMS the decision promulgated on July 26,
2006; and ORDERS accused CHAD MANANSALA y LAGMAN to pay the costs of
suit.
SO ORDERED.
Sereno (C.J., Chairperson), Leonardo-De Castro,
Villarama, Jr. and Reyes, JJ., concur.
Judgment affirmed.
Notes.―The stiff penalties that the crime of dealing with illegal drugs carry
stemmed no doubt from the reality that this menace has destroyed the lives of many
members of our society. (People vs. Tion, 608 SCRA 299 [2009])
To convict an accused of illegal sale of marijuana, the prosecution must
establish these essential elements: (1) the identity of the buyer and the seller, the
object of the sale, and the consideration; and (2) the delivery of the thing sold and
the payment. (People vs. Dansico, 644 SCRA 151 [2011])
――o0o――
G.R. No. 206513. October 20, 2015.*
CRIMINAL LAW | PENALTIES
MUSTAPHA DIMAKUTA y MARUHOM, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
Criminal Law; Probation Law; The policy has been to allow convicted and
sentenced defendant to apply for probation within the fifteen (15)-day period for
perfecting an appeal.—On October 5, 1985, Section 4 was subsequently amended
by P.D. No. 1990. Henceforth, the policy has been to allow convicted and sentenced
defendant to apply for probation within the 15-day period for perfecting an appeal.
As modified, Section 4 of the Probation Law now reads: SEC. 4. Grant of
Probation.—Subject to the provisions of this Decree, the
_______________
* EN BANC.
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Dimakuta vs. People
trial court may, after it shall have convicted and sentenced a
defendant and upon application by said defendant within the period for
perfecting an appeal, suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms and conditions as it
may deem best; Provided, that no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of imprisonment
or a fine only. An application for probation shall be filed with the trial court. The
filing of the application shall be deemed a waiver of the right to appeal. An order
granting or denying probation shall not be appealable.
Same; Same; In view of the latest amendment to Section 4 of the Probation
Law that “no application for probation shall be entertained or granted if the
defendant has perfected an appeal from the judgment of conviction,” prevailing
jurisprudence treats appeal and probation as mutually exclusive remedies because
the law is unmistakable about it.—Verily, Section 4 of the Probation Law provides
that the application for probation must be filed with the trial court within the 15-
day period for perfecting an appeal. The need to file it within such period is
intended to encourage offenders, who are willing to be reformed and rehabilitated,
to avail themselves of probation at the first opportunity. If the application for
probation is filed beyond the 15-day period, then the judgment becomes final and
executory and the lower court can no longer act on the application for probation.
On the other hand, if a notice of appeal is perfected, the trial court that rendered
the judgment of conviction is divested of any jurisdiction to act on the case, except
the execution of the judgment when it has become final and executory. In view of
the latest amendment to Section 4 of the Probation Law that “no application for
probation shall be entertained or granted if the defendant has perfected an appeal
from the judgment of conviction,” prevailing jurisprudence treats appeal and
P a g e 225 | 279
probation as mutually exclusive remedies because the law is unmistakable about
it. Indeed, the law is very clear and a contrary interpretation would counter its
envisioned mandate. Courts have no authority to invoke “liberal interpretation” or
“the spirit of the law” where the words of the statute themselves, and as illuminated
by the history of that statute, leave no room for doubt or interpretation. To be sure,
the remedy of convicted felons who want to avail of the benefits of probation even
after the remedy of an
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230 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
appeal is to go to the Congress and ask for the amendment of the law. To
surmise a converse construal of the provision would be dangerously encroaching on
the power of the legislature to enact laws and is tantamount to judicial legislation.
Same; Same; Probation is not a right granted to a convicted offender; it is a
special privilege granted by the State to a penitent qualified offender, who does not
possess the disqualifications under Section 9 of Presidential Decree (PD) No. 968,
as amended.—It was obvious then, as it is now, that the accused in Colinares v.
People, 662 SCRA 266 (2011), should not have been allowed the benefit of probation.
As I have previously stated and insisted upon, probation is not a right granted to a
convicted offender; it is a special privilege granted by the State to a penitent
qualified offender, who does not possess the disqualifications under Section 9 of
P.D. No. 968, as amended. Likewise, the Probation Law is not a penal law for it to
be liberally construed to favor the accused.
Same; Same; What Section 4 of the Probation Law prohibits is an appeal from
the judgment of conviction, which involves a review of the merits of the case and the
determination of whether the accused is entitled to acquittal.—To note, what
Section 4 of the Probation Law prohibits is an appeal from the judgment of
conviction, which involves a review of the merits of the case and the determination
of whether the accused is entitled to acquittal. However, under the recommended
grounds for appeal which were enumerated earlier, the purpose of the appeal is not
to assail the judgment of conviction but to question only the propriety of the
sentence, particularly the penalty imposed or the crime for which the accused was
convicted, as the accused intends to apply for probation upon correction of the
penalty or conviction for the lesser offense. If the CA finds it proper to modify the
sentence, and the penalty finally imposed by the appellate court is within the
probationable period, or the crime for which the accused is eventually convicted
imposes a probationable penalty, application for probation after the case is
remanded to the trial court for execution should be allowed.
Same; Same; Section 4 of the Probation Law prohibits granting an application
for probation if an appeal from the sentence of conviction has been perfected by the
accused.—Probation should not be granted to the accused in the following
instances: 1. When the ac-
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Dimakuta vs. People
cused is convicted by the trial court of a crime where the penalty imposed is
within the probationable period or a fine, and the accused files a notice of appeal;
and 2. When the accused files a notice of appeal which puts the merits of his
conviction in issue, even if there is an alternative prayer for the correction of the
penalty imposed by the trial court or for a conviction to a lesser crime, which is
necessarily included in the crime in which he was convicted where the penalty is
within the probationable period. Both instances violate the spirit and letter of the
law, as Section 4 of the Probation Law prohibits granting an application for
probation if an appeal from the sentence of conviction has been perfected by the
accused.
Same; Child Abuse Law; Sexual Abuse; Under Section 5, Article III of
Republic Act (RA) No. 7610, a child is deemed subjected to other sexual abuse when
he or she indulges in lascivious conduct under the coercion or influence of any
adult.—Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected
to other sexual abuse when he or she indulges in lascivious conduct under the
coercion or influence of any adult. This statutory provision must be distinguished
from Acts of Lasciviousness under Articles 336 and 339 of the RPC. As defined in
Article 336 of the RPC, Acts of Lasciviousness has the following elements: (1) That
the offender commits any act of lasciviousness or lewdness; (2) That it is done under
any of the following circumstances: a. By using force or intimidation; or b. When
the offended party is deprived of reason or otherwise unconscious; or c. When the
offended party is under 12 years of age; and (3) That the offended party is another
person of either sex. Article 339 of the RPC likewise punishes acts of lasciviousness
committed with the consent of the offended party if done by the same persons and
under the same circumstances mentioned in Articles 337 and 338 of the RPC, to
wit: 1. if committed against a virgin over twelve years and under eighteen
years of age by any person in public authority, priest, home-servant, domestic,
guardian, teacher, or any person who, in any capacity, shall be entrusted with the
education or custody of the woman; or 2. if committed by means of deceit against a
woman who is single or a widow of good reputation, over twelve but under
eighteen years of age.
Same; Rape; Rape Through Sexual Assault; Article 226-A, paragraph 2 of the
Revised Penal Code (RPC), punishes inserting of the penis into another person’s
mouth or anal orifice, or any instru-
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232 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
P a g e 226 | 279

ment or object, into the genital or anal orifice of another person if the victim
did not consent either it was done through force, threat or intimidation; or when the
victim is deprived of reason or is otherwise unconscious; or by means of fraudulent
machination or grave abuse of authority as sexual assault as a form of rape.—
Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into another
person’s mouth or anal orifice, or any instrument or object, into the genital or anal
orifice of another person if the victim did not consent either it was done through
force, threat or intimidation; or when the victim is deprived of reason or is
otherwise unconscious; or by means of fraudulent machination or grave abuse of
authority as sexual assault as a form of rape. However, in instances where the
lascivious conduct is covered by the definition under R.A. No. 7610, where the
penalty is reclusion temporal medium, and the act is likewise covered by sexual
assault under Article 266-A, paragraph 2 of the RPC, which is punishable
by prisión mayor, the offender should be liable for violation of Section 5(b), Article
III of R.A. No. 7610, where the law provides for the higher penalty of reclusion
temporal medium, if the offended party is a child victim. But if the victim is at least
eighteen (18) years of age, the offender should be liable under Art. 266-A, par. 2 of
the RPC and not R.A. No. 7610, unless the victim is at least eighteen (18) years and
she is unable to fully take care of herself or protect herself from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or mental disability or
condition, in which case, the offender may still be held liable for sexual abuse under
R.A. No. 7610.
Same; Same; Child Abuse Law; A child is presumed by law to be incapable of
giving rational consent to any lascivious act, taking into account the constitutionally
enshrined State policy to promote the physical, moral, spiritual, intellectual and
social well-being of the youth, as well as, in harmony with the foremost consideration
of the child’s best interests in all actions concerning him or her.—There could be no
other conclusion, a child is presumed by law to be incapable of giving rational
consent to any lascivious act, taking into account the constitutionally enshrined
State policy to promote the physical, moral, spiritual, intellectual and social well-
being of the youth, as well as, in harmony with the foremost consideration of the
child’s best interests in all actions concerning him or her. This is equally consistent
with the declared policy of the State to provide special protection to children
from all forms of abuse, neglect,
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Dimakuta vs. People
cruelty, exploitation and discrimination, and other conditions prejudicial to
their development; provide sanctions for their commission and carry out a program
for prevention and deterrence of and crisis intervention in situations of child abuse,
CRIMINAL LAW | PENALTIES
exploitation, and discrimination. Besides, if it was the intention of the framers of
the law to make child offenders liable only of Article 266-A of the RPC, which
provides for a lower penalty than R.A. No. 7610, the law could have expressly made
such statements.
Same; Same; Same; Sexual Abuse; The law does not require physical violence
on the person of the victim; moral coercion or ascendancy is sufficient.—Notably, a
child is considered as sexually abused under Section 5(b) of R.A. No. 7610 when he
or she is subjected to lascivious conduct under the coercion or influence of any
adult. Intimidation need not necessarily be irresistible. It is sufficient that some
compulsion equivalent to intimidation annuls or subdues the free exercise of the
will of the offended party. The law does not require physical violence on the person
of the victim; moral coercion or ascendancy is sufficient.
Same; Child Abuse Law; Children; Words and Phrases; Under Section 3(a) of
Republic Act (RA) No. 7610, “children” refers to “persons below eighteen (18) years
of age or those over but unable to fully take care of themselves or protect themselves
from abuse, neglect, cruelty, exploitation or discrimination because of a physical or
mental disability or condition.”—The victim is 16 years of age at the time of the
commission of the offense. Under Section 3(a) of R.A. No. 7610, “children” refers to
“persons below eighteen (18) years of age or those over but unable to fully take care
of themselves or protect themselves from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition.”
VELASCO, JR., J., Dissenting Opinion:
Criminal Law; Probation Law; View that as held in Colinares v. People, 662
SCRA 266 (2011), the appellate court’s downward modification of the penalty
meted, from a non-probationable to a probationable one, amounted to an original
conviction for a probationable penalty.—As held in Colinares v. People, 662 SCRA
266 (2011), the appellate court’s downward modification of the penalty meted, from
a non-probationable to a probationable one, amounted to an original con-
234
234 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
viction for a probationable penalty. Under such circumstance, the Court held
that the offender should still be allowed to apply for the privilege of probation in
spite of his prior perfection of an appeal because the appeal was made at a time
when he was not yet a qualified offender. In other words, therein offender has
not yet lodged an appeal from the original judgment of conviction of a probationable
penalty, qualifying him to apply for probation under Sec. 4.
Same; Same; View that Sec. 4 of the Probation Law of 1976 clearly commands
that “no application for probation shall be entertained or granted if the defendant
perfected the appeal from the judgment of conviction.”—Sec. 4 clearly commands
that “no application for probation shall be entertained or granted if the defendant
perfected the appeal from the judgment of conviction.” At first blush, there is
P a g e 227 | 279
nothing vague in the provision that calls for judicial interpretation. The provision,
as couched, mandates that the perfection of an appeal disqualifies an otherwise
qualified offender from applying for probation. Nevertheless, I fully concur with the
Court’s ruling in Colinares that the bar must be applied only to offenders who
were already qualified to apply for probation but opted to file an appeal instead.
An otherwise rigid application of the rule would defeat the very purpose of the
Probation Law, which is giving a qualified penitent offender the opportunity to be
placed on probation instead of being incarcerated.
Same; Same; View that the ponencia’s restrictive proposition would lead to a
baffling result — the very appeal that would have qualified the convicted felon to
apply for probation (i.e., the appeal that resulted in the downgrading of the offense
or the reduction of the penalty to a probationable one) would also be the very same
appeal that would disqualify him from availing thereof.—Unlike this modification
in the interpretation of Sec. 4 of PD No. 968 that was introduced in Colinares,
the ponencia’s imposition of additional restrictions for availing of the benefits
under the Probation Law is not in keeping with the spirit of the law. To recall,
the ponencia intimates that the added restrictions are based on the argument that
what is prohibited under the Probation Law is challenging the judgment of
conviction, which, in the majority’s posture, is the finding of guilt, without
distinction on whether the penalty imposed is probationable or not. According to
the majority, the accused may still lodge an appeal and qualify for probation if the
appeal is limited to praying
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Dimakuta vs. People
for the reduction of the penalty imposed or downgrading the crime he is
convicted of, and should in no way insist on his innocence. With these requirements
in place, the majority effectively would want the accused to change his theory of
the case and belatedly plead guilty on appeal to a lesser offense, akin to a last
minute plea-bargain. The problem here is that the ponencia’s interpretation is
tantamount to forcing the accused to already forego appealing for his acquittal at
a time that probation is not yet available. This goes against the rationale of the
law, which seeks to discourage from appealing only those who are, in the first
place, already qualified to apply for probation, but waste the opportunity
by insisting on their innocence. What is more, the ponencia’s restrictive
proposition would lead to a baffling result — the very appeal that would have
qualified the convicted felon to apply for probation (i.e., the appeal that
resulted in the downgrading of the offense or the reduction of the penalty
to a probationable one) would also be the very same appeal that would
disqualify him from availing thereof.
Same; Same; View that in ascertaining an offender’s penitence, the Supreme
Court (SC) has repeatedly held that the qualified offender’s perfection of an appeal
CRIMINAL LAW | PENALTIES
questioning his conviction, instead of beseeching the State’s generosity through an
application for probation at the first opportunity, is antithetical to remorse and
penitence.—In ascertaining an offender’s penitence, the Court has repeatedly held
that the qualified offender’s perfection of an appeal questioning his conviction,
instead of beseeching the State’s generosity through an application for probation at
the first opportunity, is antithetical to remorse and penitence. Bear in mind,
though, that the amendment was prompted by the State’s past experience where
qualified offenders “wager” their chances and still seek an acquittal, only to invoke
the privilege of probation when it is almost certain that they would not be found
innocent. It would, therefore, be erroneous to apply the same principle to
offenders who are not qualified, those who had no opportunity, to seek
the privilege in the first place. We cannot expect them to immediately show
remorse via applying for probation, putting their right to appeal on the line in so
doing, when they are not even qualified for the privilege under the law. In their
case, there is no wager and no “first opportunity” to apply for probation to speak
off, but a clear lack of option on the part of the offenders. They had no other choice
but to appeal.
236
236 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
Same; Same; View that to hold, in the case at bar, that a formerly disqualified
offender who only became qualified for probation after judgment by an appellate
court is still disqualified from applying for the privilege is tantamount to amending
the law via judicial interpretation.—Well-entrenched is the rule that the primordial
duty of the Court is merely to apply the law in such a way that it does not usurp
legislative powers by judicial legislation. Thus, in the course of such application or
construction, it should not make or supervise legislation, or under the guise of
interpretation, modify, revise, amend, distort, remodel, or rewrite the law, or give
the law a construction which is repugnant to its terms. The Court should shy away
from encroaching upon the primary function of a coequal branch of the
Government; otherwise, this would lead to an inexcusable breach of the doctrine of
separation of powers by means of judicial legislation. To hold, in the case at bar,
that a formerly disqualified offender who only became qualified for probation after
judgment by an appellate court is still disqualified from applying for the privilege
is tantamount to amending the law via judicial interpretation. With the Court’s
disposition of the instant petition, the majority is effectively placing additional
qualifications and grounds for disqualification that not only cannot be found
anywhere in the four corners of the statute, but, worse, defeat the very purpose for
which the Probation Law was enacted.
Same; Same; View that the ponencia is virtually sending a message to
convicted felons that they should already be penitent even before they are qualified
to apply for probation to be allowed to avail of the privilege in the off-chance that
the penalty meted on them is reduced or the crime they are convicted of is
downgraded on appeal.—The ponencia, in its postulation, basically legislates the
P a g e 228 | 279
timeframe for an offender’s penitence. The ponencia is virtually sending a message
to convicted felons that they should already be penitent even before they are
qualified to apply for probation to be allowed to avail of the privilege in the off-
chance that the penalty meted on them is reduced or the crime they are convicted
of is downgraded on appeal. We have to consider though that it is only natural for
a person charged with a crime, subjected to a highly adversarial process, and going
up against the “People of the Philippines” in litigation, to be on the defensive and
insist on his innocence rather than readily sacrifice his liberty in gambling for a
mere probability of becoming eligible for, not necessarily entitled to, probation. This
does not mean,
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Dimakuta vs. People
however, that he who is guilty but denies the commission of the crime even
after having been convicted by the trial court will never ever regret having
committed the offense. For his perceived lack of option, a litigant may be compelled
to appeal his conviction, without necessarily making him any less repentant later
on. It would not come as a surprise if it will only be after his appeal is heard, after
the penalty imposed upon him is lessened or after his crime was downgraded, after
a window of opportunity to receive a second lease in life opens, would his penitence
be manifest in his pleadings, would he apply for probation, and would he no longer
pursue the case or push his luck.
Same; Same; View that the appellate court’s judgment convicting therein
defendant, for the first time, of a probationable crime or imposing upon him a
probationable penalty should be treated as an original conviction, entitling him to
apply for probation in spite of perfecting an appeal.—To be clear, nowhere in the
Probation Law does it provide that the “appeal” from the judgment of conviction
should be that made from the trial court to the appellate court. Hence, the “appeal”
could very well refer to any of the three (3) opportunities to seek a review of a
judgment of conviction in criminal procedure: (a) questioning the judgments of the
Municipal Trial Court, Metropolitan Trial Court, Municipal Circuit Trial Court,
and of the Municipal Trial Court in Cities before the Regional Trial Court; (b)
elevating the case from the Regional Trial Court to the Court of Appeals; and (c) by
assailing the unfavorable Decision of the Court of Appeals to this Court — the court
of last resort. Corollarily, it is submitted that the “judgment of conviction” should
not be taken to mean the initial finding of guilt, since, as maintained by the
majority in Colinares, an original judgment of conviction may also be handed down
by the appellate courts, especially when it involves the annulment or modification
of the trial court’s decision. As discussed, the appellate court’s judgment convicting
therein defendant, for the first time, of a probationable crime or imposing upon him
a probationable penalty should be treated as an original conviction, entitling
him to apply for probation in spite of perfecting an appeal. The appeal lodged by
the offender, which reduced his conviction to a probationable one, in no way
adversely affected his later-acquired eligibility.
CRIMINAL LAW | PENALTIES
238
238 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
Same; Same; View that the Supreme Court (SC) should view the appellate
court’s judgment which effectively qualified the offender for probation as the
conviction from which the defendant should not appeal from if he wishes to apply
for the privilege of probation.—In line with the teachings in Colinares, the Court
should view the appellate court’s judgment which effectively qualified the
offender for probation as the conviction from which the defendant should
not appeal from if he wishes to apply for the privilege of probation. This
should be the case for the simple reason that he has not yet questioned this second
original conviction which qualifies him for probation. To reiterate, what the law
proscribes is the application for probation by a defendant who has appealed his
conviction for a probationable crime or with a probationable penalty. This
proscription should, therefore, come in only when the offender has already been
convicted of a probationable crime or imposed a probationable penalty, not when
he was still disqualified for probation.
Attorneys; View that the lawyer owes “entire devotion to the interest of the
client, warm zeal in the maintenance and defense of his rights and the exertion of
his utmost learning and ability,” to the end that nothing be taken or be withheld
from the latter, save by the rules of law, legally applied.—Simply put, a defense
lawyer is expected to advocate his client’s innocence in line with the
principle deeply embedded in our legal system that an accused is
presumed innocent until proven guilty beyond reasonable doubt. The
lawyer owes “entire devotion to the interest of the client, warm zeal in the
maintenance and defense of his rights and the exertion of his utmost learning and
ability,” to the end that nothing be taken or be withheld from the latter, save by
the rules of law, legally applied. Thus, unless and until his client has been convicted
with finality, we cannot expect his counsel to detract, or even require him to detract
from this duty, and convince his client to simply admit guilt and either seek a
reduction of the penalty imposed or the downgrading of the crime he has been
convicted of just so the client may have a window of opportunity to apply for the
privilege of probation if and only if the appeal is granted. Instead, the client, in the
judicial forum, should be afforded the benefit of any and every remedy and defense
that is authorized by the law of the land, and he may expect his lawyer to assert
every such remedy or defense.
239
VOL. 773, OCTOBER 20, 2015 239
Dimakuta vs. People
Criminal Law; Probation Law; View that if, notwithstanding this downward
modification of the penalty imposed or the crime the accused is convicted of, the now
P a g e 229 | 279
qualified defendant still appeals his new conviction on whatever ground, then, this
would be the time when his appeal would bar him from applying for the privilege
under Sec. 4.—The more precise interpretation, therefore, would be to grant this
opportunity to apply for probation when the accused is originally
convicted for a probationable offense or sentenced to suffer a
probationable penalty, without distinction on whether the said “original
conviction” was issued by the trial court or appellate court. What is
material is that the application for the privilege of probation be made at the first
opportunity, which is the period to appeal from when the offender first
became qualified for the privilege. For how can we say that the convicted
offender wagered for an acquittal on appeal instead of applying for probation when
he is not qualified to avail of the benefits of the Probation Law in the first place?
He simply had no other option at that point. As in Colinares, petitioner in this case
became qualified for probation only after the appellate court modified the trial
court’s ruling. If, notwithstanding this downward modification of the
penalty imposed or the crime the accused is convicted of, the now
qualified defendant still appeals his new conviction on whatever ground,
then, this would be the time when his appeal would bar him from applying
for the privilege under Sec. 4.
MENDOZA, J., Dissenting Opinion:
Criminal Law; Probation Law; View that probation is not a right of an
accused but a mere privilege, an act of grace and clemency or immunity conferred
by the State, which is granted to a deserving defendant who thereby escapes the
extreme rigors of the penalty imposed by law for the offense of which he was
convicted.—Probation is not a right of an accused but a mere privilege, an act of
grace and clemency or immunity conferred by the State, which is granted to a
deserving defendant who thereby escapes the extreme rigors of the penalty imposed
by law for the offense of which he was convicted. In recent jurisprudence, it has
been clarified that while the convicted offender has no right to such privilege,
nevertheless, he has the right to apply for that privilege, provided that he is not
disqualified from availing the benefits of probation.
240
240 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
Same; Same; View that the purpose of the amendment is simply to prevent
speculation or opportunism on the part of the accused who, although already eligible
for probation, does not at once apply for probation, but did so only after failing in
his appeal.—It bears stressing that the evil of speculation and opportunism on the
part of the accused sought to be curbed by the amendment in P.D. No. 1990 was
not present in the case at bench inasmuch as the penalty imposed by the RTC
CRIMINAL LAW | PENALTIES
against Mustapha was not probationable at the outset. Besides, nowhere in the
amendatory decree does it state or even hint that in limiting the accused to the
choice of either appealing from the decision of the trial court or applying for
probation, the purpose is to deny him of the right to apply for probation in cases
like the one at bench where he became eligible for probation only because his
sentence was reduced on appeal. To repeat, the purpose of the amendment is simply
to prevent speculation or opportunism on the part of the accused who, although
already eligible for probation, does not at once apply for probation, but did so only
after failing in his appeal.
Same; Same; View that regardless of whether an accused appealed the merits
of the case or simply the correctness of the penalty imposed, the Court should not
distinguish insofar as the application of the Probation Law is concerned.—
Regardless of whether an accused appealed the merits of the case or simply the
correctness of the penalty imposed, the Court should not distinguish insofar as the
application of the Probation Law is concerned. The Court cannot expect Mustapha
to forgo the remedy of appeal and admit guilt over a crime he did not commit due
to an erroneous appreciation of the merits of the case. He should not accept the
erroneous judgment of the RTC for, in truth, he only committed Acts of
Lasciviousness with a maximum penalty of four (4) years and two (2) months.
Mustapha should not be made to suffer through the forfeiture of the right to apply
for probation simply because the RTC had blundered. In the Colinares v. People,
662 SCRA 266 (2011) case, it was written: The Probation Law never intended to
deny an accused his right to probation through no fault of his. The underlying
philosophy of probation is one of liberality towards the accused. Such philosophy is
not served by a harsh and stringent interpretation of the statutory provisions. As
Justice Vicente V. Mendoza said in his dissent in Francisco, the Probation Law
must not be regarded as a mere privilege to be given to the accused only where it
clearly appears he comes within its letter; to do so would be to disregard the
teaching in many cases that the
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Probation Law should be applied in favor of the accused not because it is a
criminal law but to achieve its beneficent purpose.
Stare Decisis; View that once a point of law has been established by the
Supreme Court (SC), that point of law will, generally, be followed by the same court
and by all courts of lower rank in subsequent cases where the same legal issue is
raised.—Adherence to the Colinares case is dictated by this Court’s policy of
securing and maintaining certainty and stability of judicial decisions in accordance
with the legal maxim stare decisis et non quieta movere (or simply, stare
decisis which means “follow past precedents and do not disturb what has been
settled”). The principle, entrenched under Article 8 of the Civil Code, evokes the
general rule that, for the sake of certainty, a conclusion reached in one case should
be doctrinally applied to those that follow if the facts are substantially the same,
P a g e 230 | 279
even though the parties may be different. Otherwise stated, once a point of law has
been established by the Court, that point of law will, generally, be followed by the
same court and by all courts of lower rank in subsequent cases where the same
legal issue is raised.
Same; View that stare decisis proceeds from the first principle of justice that,
absent powerful countervailing considerations, like cases ought to be decided
alike.—Stare decisis proceeds from the first principle of justice that, absent
powerful countervailing considerations, like cases ought to be decided alike. Hence,
where, as in this case, the same question relating to the same event have been put
forward by parties similarly situated as in a previous case litigated and decided by
a competent court, the rule of stare decisis is a bar to any attempt to relitigate the
same issue. Significantly, the respondent has not shown any strong and compelling
reason to persuade the Court that the manner of disposition in Colinares v. People,
pertaining to the matter of probation should not be observed and adopted in the
case at bench.
LEONEN, J., Concurring Opinion:
Criminal Law; Probation Law; View that probation and appeal are mutually
exclusive remedies. Probation is a mere privilege granted only to offenders who are
willing to be reformed and rehabilitated. It cannot be availed of when an offender
has already perfected his or her appeal from the judgment of conviction.—The
accused
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Dimakuta vs. People
touched the breast and vagina of a 16-year-old minor. The Court of Appeals
failed to appreciate that this would not have been possible without intimidation or
coercion. It lowered the penalty from a minimum imprisonment of ten (10) years to
a minimum imprisonment of six (6) months. If the Decision of the Court of Appeals
is upheld, he will not serve a single day in prison for his acts. This is not what the
law requires. This is definitely not what it intends. Probation and appeal are
mutually exclusive remedies. Probation is a mere privilege granted only to
offenders who are willing to be reformed and rehabilitated. It cannot be availed of
when an offender has already perfected his or her appeal from the judgment of
conviction.
Same; Same; View that generally, after a finding of fact by a trial court of the
guilt of an accused beyond reasonable doubt, society is entitled to the expectation
that he or she serve his or her sentence. In this sense, probation is a mere privilege:
an exception granted to a general rule that is both reasonable and just.—Generally,
after a finding of fact by a trial court of the guilt of an accused beyond reasonable
doubt, society is entitled to the expectation that he or she serve his or her sentence.
In this sense, probation is a mere privilege: an exception granted to a general rule
that is both reasonable and just. I submit that Colinares v. People, 662 SCRA 266
CRIMINAL LAW | PENALTIES
(2011), should not be made to apply to this case for two
reasons. First, Colinares has not yet become established doctrine, and the dissents
of the case offer a sound and logical approach to the issue. Colinares read an
outcome, which is not supported by the text of law. Second, even assuming that the
ratio in Colinares is good law, it finds no application to this case since the Court of
Appeals erred in modifying the judgment of the trial court.
Same; Same; View that an accused who has been sentenced to a penalty of less
than six (6) years of imprisonment may only apply for probation if he or she has not
yet perfected his or her appeal from the judgment of conviction. There are no
exceptions to the rule in the text of the law.—The present law makes an appeal and
an application for probation mutually exclusive remedies. An accused who has been
sentenced to a penalty of less than six (6) years of imprisonment may only apply
for probation if he or she has not yet perfected his or her appeal from the judgment
of conviction. There are no exceptions to the rule in the text of the law. The intent to
make the choices exclusive from each other is seen in the context of the history of the
amend-
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ments to this law. The amendment to Section 4 of the Probation Law has also
been the subject of several cases before this court. Two cases, in particular,
established the following principles: 1. The Probation Law is not a penal statute
that may be interpreted liberally in favor of the accused; and 2. Section 4 of the
Probation Law clearly mandates that no application for probation shall be
entertained or granted if the defendant has perfected the appeal from the judgment
of conviction.
Same; Same; Statutory Construction; View that it is a settled principle of
statutory construction that only penal statutes are construed liberally in favor of the
accused. It is also equally settled that the Probation Law is not a penal statute. The
provisions of the law, including Section 4, should be interpreted as stated, which is
that once an appeal has been perfected by the accused, he or she is not anymore
entitled to the benefits of probation.—It is a settled principle of statutory
construction that only penal statutes are construed liberally in favor of the accused.
It is also equally settled that the Probation Law is not a penal statute. The
provisions of the law, including Section 4, should be interpreted as stated, which is
that once an appeal has been perfected by the accused, he or she is not anymore
entitled to the benefits of probation.
Same; Same; View that the Probation Law intends to benefit only penitent
offenders, or those who admit to their offense and are willing to undergo
rehabilitation.—The Probation Law intends to benefit only penitent offenders, or
those who admit to their offense and are willing to undergo rehabilitation.
According to Section 2 of the Probation Law: Section 2. Purpose.—This Decree shall
be interpreted so as to: (a) promote the correction and rehabilitation of an offender
by providing him with individualized treatment; (b) provide an opportunity for the
P a g e 231 | 279
reformation of a penitent offender which might be less probable if he were to serve
a prison sentence; and (c) prevent the commission of offenses. Moreover, the law
was amended precisely to prohibit those offenders from taking advantage of the
benefits of the Probation Law when their appeals for innocence are rendered futile.
Same; Same; View that petitioner’s appeal before the Court of Appeals (CA)
was made for the purpose of securing an acquittal; it was not for the purpose of
lowering his penalty to one within the
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244 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
probationable period. To allow him to apply for probation would be to
disregard the intent of the law: that appeal and probation are mutually exclusive
remedies.—Petitioner’s appeal before the Court of Appeals was made for the
purpose of securing an acquittal; it was not for the purpose of lowering his penalty
to one within the probationable period. To allow him to apply for probation would
be to disregard the intent of the law: that appeal and probation are mutually
exclusive remedies.
Same; Same; View that petitioner was correctly found by the trial court guilty
of violation of Article III, Section 5(b) of Republic Act (RA) No. 7610. Since this
offense is punishable by reclusion temporal or an imprisonment of more than six (6)
years, petitioner is not eligible for probation.—Petitioner was correctly found by the
trial court guilty of violation of Article III, Section 5(b) of Republic Act No. 7610.
Since this offense is punishable by reclusion temporal or an imprisonment of more
than six (6) years, petitioner is not eligible for probation.
PETITION for review on certiorari of a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
Rommel N. Cariño for petitioner.
The Solicitor General for respondent.
PERALTA, J.:
The Court is now faced with one of the predicaments I discussed in my
Dissenting and Concurring Opinion in Colinares v. People.1 The question
regarding the application of the Probation Law is again inescapably intertwined
with the present petition. Consequently, I must reiterate my assertions and
arguments in Colinares to the case at bar.
In the present controversy, petitioner Mustapha
Dimakuta y Maruhom alias Boyet was indicted for Violation of Section 5,
_______________
1 678 Phil. 482; 662 SCRA 266 (2011).
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Dimakuta vs. People
paragraph (b), Article III of Republic Act (R.A.) No. 7610 or the Special Protection
of Children Against Abuse, Exploitation and Discriminatory Act. The Information
reads:
That on or about the 24th day of September 2005, in the City of Las
Piñas, Philippines, and within the jurisdiction of this Honorable Court, the
above named accused, with lewd designs, did then and there willfully,
unlawfully and feloniously commit a lascivious conduct upon the person of
one AAA, who was then a sixteen (16)-year-old minor, by then and there
embracing her, touching her breast and private part against her will and
without her consent and the act complained of is prejudicial to the physical
and psychological development of the complainant.2
After trial, the RTC promulgated its Decision3 which convicted petitioner of the
crime charged and sentenced him to suffer an indeterminate penalty of
imprisonment ranging from ten (10) years of prisión mayor, as minimum, to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as
maximum, with the accessory penalty of perpetual absolute disqualification. In
addition, he was directed to pay a fine of P20,000.00, civil indemnity of P25,000.00,
and moral damages of P25,000.00.4
Feeling aggrieved, petitioner elevated the case to the Court of Appeals (CA)
arguing, among other things, that even assuming he committed the acts imputed,
still there is no evidence showing that the same were done without the victim’s
consent or through force, duress, intimidation or violence upon her. Surprisingly,
when asked to comment on the appeal, the Office of the Solicitor General (OSG),
relying heavily on People v. Abello,5 opined that petitioner should have been
_______________
2 Rollo, p. 33.
3 Penned by Presiding Judge Joselito dj. Vibandor (id., at pp. 33-43).
4 Id., at pp. 42-43.
5 601 Phil. 373; 582 SCRA 378 (2009).
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246 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
convicted only of Acts of Lasciviousness under Article 336 of the Revised Penal
Code (RPC) in view of the prosecution’s failure to establish that the lascivious acts
were attended by force or coercion because the victim was asleep at the time the
alleged acts were committed.
On June 28, 2012, the CA rendered a Decision6 adopting the recommendation
of the OSG. In modifying the RTC Decision, petitioner was found guilty of Acts of
P a g e 232 | 279
Lasciviousness under Article 336 of the RPC and was sentenced to suffer the
indeterminate penalty of six (6) months of arresto mayor, as minimum, to four (4)
years and two (2) months of prisión correccional, as maximum. Likewise, he was
ordered to pay P20,000.00 as civil indemnity and P30,000.00 as moral damages.
Petitioner received a copy of CA Decision on July 6, 2012. 7 Instead of further
appealing the case, he filed on July 23, 2012 before the CA a manifestation with
motion to allow him to apply for probation upon remand of the case to the
RTC.8 Petitioner invoked the case of Colinares v. People9 which allowed petitioner
therein to apply for probation after his sentence was later reduced on appeal by the
Supreme Court.
The CA issued a Resolution on September 3, 2012 denying petitioner’s
manifestation with motion.10 It was ruled that Colinares is inapplicable since
petitioner therein raised as sole issue the correctness of the penalty imposed and
claimed that the evidence presented warranted only a conviction for the lesser
offense. Instead, the appellate court viewed as appropriate the case of Lagrosa v.
People,11 wherein the applica-
_______________
6 Penned by Associate Justice Myra V. Garcia-Fernandez, with Associate
Justices Vicente S.E. Veloso and Stephen C. Cruz, concurring (Rollo, pp. 117-130).
7 Id., at p. 132.
8 Id., at pp. 132-144.
9 Colinares v. People, supra note 1.
10 Rollo, pp. 26-29.
11 453 Phil. 270; 405 SCRA 357 (2003).
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Dimakuta vs. People
tion for probation was denied because petitioners therein put in issue on appeal the
merits of their conviction and did not simply assail the propriety of the penalties
imposed.
Petitioner filed a motion for reconsideration,12 but it was denied in a
Resolution13 dated March 13, 2013; hence, this petition.
The petition should be denied.
At the outset, tracing the evolution of the present Probation Law is warranted
in order to better understand and apply the wisdom of its framers to cases invoking
its application.
In this jurisdiction, the concept of probation was introduced during the
American colonial period.14 For juvenile delinquents, Act No. 320315 was enacted
on December 3, 1924. It was later amended by Act Nos. 3309, 16 3559,17 and
3725.18 As to offenders who are eighteen years old and above, Act No. 4221 19 was
passed by the legislature and took effect on August 7, 1935. Said Act allowed
defendants who are convicted and sentenced by a Court of First Instance or by the
CRIMINAL LAW | PENALTIES
Supreme Court on appeal, except those who are convicted of offenses enumerated
in Section 8 thereof,20 to be placed on probation
_______________
12 Rollo, pp. 146-155.
13 Id., at p. 31.
14 1898-1945.
15 An Act Relating to the Care and Custody of Neglected and Delinquent
Children; Providing Probation Officers therefor; Imposing Penalties for Violations
of its Provisions and for Other Purposes.
16 Effective on December 2, 1926.
17 Effective on November 26, 1929.
18 Effective on November 21, 1930.
19 An Act Establishing Probation for Persons, Eighteen Years of Age or Above,
Convicted of Certain Crimes by the Courts of the Philippine Islands; Providing
Probation Officers Therefor; and for Other Purposes, dated August 7, 1935.
20 SEC. 8. This Act shall not apply to persons convicted of offenses
punishable by death or life imprisonment; to those convicted
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248 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
upon application after the sentence has become final and before its service has
begun.21 However, We declared in People v. Vera22 that Act No. 4221 is
unconstitutional and void as it constitutes an improper and unlawful delegation of
legislative authority to the provincial boards.
During the martial law period, then President Ferdinand E. Marcos issued
Presidential Decree (P.D.) No. 96823 on July 24, 1976. Originally, P.D. No. 968
allowed the filing of an application for probation at any time after the defendant
had been convicted and sentenced. Section 4 of which provides:
SEC. 4. Grant of Probation.—Subject to the provisions of this Decree,
the court may, after it shall have convicted and sentenced a
defendant and upon application at any time of said defendant,
suspend the execution of said sentence and place the defendant on probation
for such period and upon such terms and conditions as it may deem best.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with
the trial court, with notice to the appellate court if an appeal has been taken
from the sentence of conviction. The filing of the application shall be deemed
a waiver of the right to appeal, or the automatic withdrawal of a pending
appeal.
_______________
P a g e 233 | 279
of homicide, treason, conspiracy or proposal to commit treason; to those convicted
of misprision of treason, sedition or espionage; to those convicted of piracy,
brigandage, arson, or robbery in band; to those convicted of robbery with violence
on persons when it is found that they displayed a deadly weapon; to those convicted
of corruption of minors; to those who are habitual delinquents; to those who have
been once on probation; and to those already-sentenced by final judgment at the
time of the approval of this Act.
21 Sec. 1.
22 65 Phil. 56 (1937).
23 Establishing a Probation System, Appropriating Funds therefor and Other
Purposes.
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Dimakuta vs. People
An order granting or denying probation shall not be appealable.24
Later, the filing of an application for probation pending appeal was still allowed
when Section 4 of P.D. No. 968 was amended by P.D. No. 125725 on December 1,
1977 by providing that such application may be made after the defendant had been
convicted and sentenced but before he begins to serve his sentence. Thus:
SEC. 4. Grant of Probation.—Subject to the provisions of this Decree, the
court may, after it shall have convicted and sentenced a defendant
but before he begins to serve his sentence and upon his application,
suspend the execution of said sentence and place the defendant on probation for
such period and upon such terms and conditions as it may deem best.
The prosecuting officer concerned shall be notified by the court of the filing of
the application for probation and he may submit his comment on such application
within ten days from receipt of the notification.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine with subsidiary imprisonment in case of insolvency. An
application for probation shall be filed with the trial court, with notice to the
appellate court if an appeal has been taken from the sentence of conviction. The
filing of the application shall be deemed a waiver of the right to appeal, or the
automatic withdrawal of a pending appeal. In the latter case, however, if the
application is filed on or after the date of the judgment of the appellate court, said
application shall be acted upon by the trial court on the basis of the judgment of
the appellate court.
_______________
24 Emphasis supplied.
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25 Amending Certain Sections of Presidential Decree Numbered Nine
Hundred and Sixty-Eight, Otherwise Known as the Probation Law of 1976,
effective on December 1, 1977.
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Dimakuta vs. People
An order granting or denying probation shall not be appealable.26
On October 5, 1985, Section 4 was subsequently amended by P.D. No.
1990.27 Henceforth, the policy has been to allow convicted and sentenced defendant
to apply for probation within the 15-day period for perfecting an appeal. As
modified, Section 4 of the Probation Law now reads:
SEC. 4. Grant of Probation.—Subject to the provisions of this Decree,
the trial court may, after it shall have convicted and sentenced a
defendant and upon application by said defendant within the
period for perfecting an appeal, suspend the execution of the sentence
and place the defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, that no application for
probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with
the trial court. The filing of the application shall be deemed a waiver of the
right to appeal.
An order granting or denying probation shall not be appealable.28
The reason for the disallowance may be inferred from the preamble of P.D. No.
1990, thus:
WHEREAS, it has been the sad experience that persons who are
convicted of offenses and who may be entitled to probation still appeal the
judgment of convic-
_______________
26 Emphasis supplied.
27 Amending Presidential Decree no. 968, Otherwise Known as the Probation
Law of 1976, issued on October 5, 1985.
28 Emphasis supplied.
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P a g e 234 | 279
 Dimakuta vs. People
tion even up to the Supreme Court, only to pursue their application for
probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution,
conviction and appeal entails too much time and effort, not to mention the
huge expenses of litigation, on the part of the State;
WHEREAS, the time, effort and expenses of the Government in
investigating and prosecuting accused persons from the lower courts up to
the Supreme Court, are oftentimes rendered nugatory when, after the
appellate Court finally affirms the judgment of conviction, the defendant
applies for and is granted probation;
WHEREAS, probation was not intended as an escape hatch and should
not be used to obstruct and delay the administration of justice, but should
be availed of at the first opportunity by offenders who are willing to be
reformed and rehabilitated;
WHEREAS, it becomes imperative to remedy the problems above
mentioned confronting our probation system[.]
Observing the developments in our Probation Law, the Court settled
in Llamado v. Court of Appeals:29
Examination of Section 4, after its amendment by P.D. No. 1257, reveals
that it had established a prolonged but definite period during which an
application for probation may be granted by the trial court. That period was:
“After [the trial court] shall have convicted and sentenced a defendant but
before he begins to serve his sentence.” Clearly, the cutoff time —
commencement of service of sentence — takes place not only after an appeal
has been taken from the sentence of conviction, but even after judgment has
been rendered by the appellate court and after judgment has become final.
Indeed, in this last situation, Section 4, as amended by P.D. No. 1257 pro-
_______________
29 256 Phil. 328; 174 SCRA 566 (1989).
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252 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
vides that “the application [for probation] shall be acted upon by the
trial court on the basis of the judgment of the appellate court”; for the
appellate court might have increased or reduced the original penalty
imposed by the trial court. x x x
xxxx
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In sharp contrast with Section 4 as amended by PD No. 1257, in its present
form, Section 4 establishes a much narrower period during which an
application for probation may be filed with the trial court: “after [the trial
court] shall have convicted and sentenced a defendant and — within the
period for perfecting an appeal — .” As if to provide emphasis, a
new proviso was appended to the first paragraph of Section 4 that
expressly prohibits the grant of an application for probation “if the
defendant has perfected an appeal from the judgment of conviction.” It is
worthy of note too that Section 4 in its present form has dropped the phrase
which said that the filing of an application for probation means “the
automatic withdrawal of a pending appeal.” The deletion is quite logical
since an application for probation can no longer be filed once an appeal is
perfected; there can, therefore, be no pending appeal that would have to be
withdrawn.
xxxx
We find ourselves unable to accept the eloquently stated arguments of
petitioner’s counsel and the dissenting opinion. We are unable to persuade
ourselves that Section 4 as it now stands, in authorizing the trial court to
grant probation “upon application by [the] defendant within the period for
perfecting an appeal” and in reiterating in the proviso that:
“no application for probation shall be entertained or granted if the
defendant has perfected an appeal from the judgment of conviction.”
did not really mean to refer to the fifteen-day period established, as
indicated above, by B.P. Blg. 129, the Interim Rules and Guidelines
Implementing B.P. Blg. 129 and the 1985 Rules on Criminal Procedure, but
rather to
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some vague and undefined time, i.e., “the earliest opportunity” to withdraw
the defendant’s appeal. The whereas clauses invoked by petitioner did not,
of course, refer to the fifteen-day period. There was absolutely no reason
why they should have so referred to that period for the operative words of
Section 4 already do refer, in our view, to such fifteen-day
period. Whereas clauses do not form part of a statute, strictly speaking; they
are not part of the operative language of the statute.
Nonetheless, whereas clauses may be helpful to the extent they articulate
the general purpose or reason underlying a new enactment, in the present
case, an enactment which drastically but clearly changed the substantive
content of Section 4 existing before the promulgation of P.D. No.
1990. Whereas clauses, however, cannot control the specific terms of the
statute; in the instant case, the whereas clauses of P.D. No. 1990
do not purport to control or modify the terms of Section 4 as amended. Upon
the other hand, the term “period for perfecting an appeal” used in Section 4
P a g e 235 | 279
 may be seen to furnish specification for the loose language “first
opportunity” employed in the fourth whereas clause. “Perfection of an
appeal” is, of course, a term of art but it is a term of art widely understood
by lawyers and judges and Section 4 of the Probation Law addresses itself
essentially to judges and lawyers. “Perfecting an appeal” has no sensible
meaning apart from the meaning given to those words in our procedural law
and so the lawmaking agency could only have intended to refer to the
meaning of those words in the context of procedural law.30
In Sable v. People, et al.,31 this Court stated that Section 4 of the Probation Law
was amended precisely to put a stop to the practice of appealing from judgments of
conviction even if the sentence is probationable, for the purpose of securing an
acquittal and applying for the probation only if the accused
_______________
30 Id., at pp. 335-339; pp. 573-577.
31 602 Phil. 989; 584 SCRA 619 (2009).
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Dimakuta vs. People
fails in his bid.32 The Probation Law “expressly requires that an accused must not
have appealed his conviction before he can avail himself of probation. This outlaws
the element of speculation on the part of the accused — to wager on the result of
his appeal — that when his conviction is finally affirmed on appeal, the moment of
truth well nigh at hand and the service of his sentence inevitable, he now applies
for probation as an ‘escape hatch,’ thus rendering nugatory the appellate court’s
affirmance of his conviction.”33
Verily, Section 4 of the Probation Law provides that the application for
probation must be filed with the trial court within the 15-day period for perfecting
an appeal. The need to file it within such period is intended to encourage offenders,
who are willing to be reformed and rehabilitated, to avail themselves of probation
at the first opportunity.34 If the application for probation is filed beyond the 15-day
period, then the judgment becomes final and executory and the lower court can no
longer act on the application for probation. On the other hand, if a notice of appeal
is perfected, the trial court that rendered the judgment of conviction is divested of
any jurisdiction to act on the case, except the execution of the judgment when it
has become final and executory.
In view of the latest amendment to Section 4 of the Probation Law that “no
application for probation shall be entertained or granted if the defendant has
perfected an appeal from the judgment of conviction,” prevailing
jurisprudence35 treats appeal and probation as mutually exclusive remedies
because the law is unmistakable about it.36 Indeed, the law is very clear and a
contrary interpretation would counter its envisioned mandate. Courts have no
authority to invoke “lib-
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_______________
32 Id., at p. 997; p. 627.
33 Id.
34 Id., at p. 996; pp. 626-627.
35 Id.; Francisco v. Court of Appeals, 313 Phil. 241; 243 SCRA 384 (1995);
and Llamado v. Court of Appeals, supra note 29.
36 Id.
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Dimakuta vs. People
eral interpretation” or “the spirit of the law” where the words of the statute
themselves, and as illuminated by the history of that statute, leave no room for
doubt or interpretation.37 To be sure, the remedy of convicted felons who want to
avail of the benefits of probation even after the remedy of an appeal is to go to the
Congress and ask for the amendment of the law. To surmise a converse construal
of the provision would be dangerously encroaching on the power of the legislature
to enact laws and is tantamount to judicial legislation.
With due respect, however, to the ponente and the majority opinion
in Colinares,38 the application of the Probation Law in the said case deserves a
second hard look so as to correct the mistake in the application of the law in that
particular case and in similar cases which will be filed before the courts and
inevitably elevated to Us like this petition.
To refresh, Colinares concluded that since the trial court imposed a penalty
beyond what is allowed by the Probation Law, albeit erroneously, the accused was
deprived of his choice to apply for probation and instead was compelled to appeal
the case. The reprehensible practice intended to be avoided by the law was,
therefore, not present when he appealed the trial court’s decision. Taking into
account that the
_______________
37 Llamado v. Court of Appeals, supra note 29 at pp. 339-340; p. 577.
38 The Court En Banc voted 9-6 in favor of Justice Roberto A. Abad, ponente.
Corona (then CJ.), Carpio, Velasco, Jr., Leonardo-De Castro, Del Castillo, Perez,
Mendoza and Reyes, JJ., concur.
Brion, J., joining J. Peralta’s Concurring and Dissenting Opinion.
Peralta, J., Concurring and Dissenting Opinion.
Bersamin, J., joining J. Peralta’s Concurring and Dissenting Opinion.
Villarama, Jr., J., Concurring and Dissenting Opinion.
Sereno, J. (now CJ.), joining Justices Peralta and Villarama, Jr.
Perlas-Bernabe, J., joining J. Villarama, Jr.
P a g e 236 | 279
 256
256 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
accused argued in his appeal that the evidence presented against him warranted
his conviction only for attempted, not frustrated, homicide, the majority of the
Court opined that the accused had purposely sought to bring down the impossible
penalty in order to allow him to apply for probation.
It was obvious then, as it is now, that the accused in Colinares should not have
been allowed the benefit of probation. As I have previously stated and insisted
upon, probation is not a right granted to a convicted offender; it is a special privilege
granted by the State to a penitent qualified offender, 39 who does not possess the
disqualifications under Section 9 of P.D. No. 968, as amended. 40 Likewise, the
Probation Law is not a penal law for it to be liberally construed to favor the
accused.41
In the American law paradigm, probation is considered as an act of clemency
and grace, not a matter of right.42 It is a privilege granted by the State, not a right
to which a criminal
_______________
39 Sable v. People, supra note 31 at p. 995; p. 625.
40 SEC. 9. Disqualified Offenders.—The benefits of this Decree shall not be
extended to those:
a. sentenced to serve a maximum term of imprisonment of more than six
years;
b. convicted of subversion or any crime against the national security or the
public order;
c. who have previously been convicted by final judgment of an offense
punished by imprisonment of not less than one month and one day and/or a fine of
not less than Two Hundred Pesos;
d. who have been once on probation under the provisions of this Decree; and
e. who are already serving sentence at the time the substantive provisions of
this Decree became applicable pursuant to Section 33 hereof.
41 Pablo v. Castillo, 391 Phil. 873, 878; 337 SCRA 176, 181 (2000); Llamado v.
Court of Appeals, supra note 29 at p. 338; p. 577.
42 People v. Anderson, 50 Cal. 4th 19, 235 P.3d 11 (2010).
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defendant is entitled.43 In City of Aberdeen v. Regan,44 it was pronounced that:
The granting of a deferred sentence and probation, following a plea or verdict
of guilty, is a rehabilitative measure and, as such, is not a matter of right but is a
matter of grace, privilege, or clemency granted to the deserving.
CRIMINAL LAW | PENALTIES
As such, even in the American criminal justice model, probation should be
granted only to the deserving or, in our system, only to qualified “penitent
offenders” who are willing to be reformed and rehabilitated. Corollarily, in this
jurisdiction, the wisdom behind the Probation Law is outlined in its stated
purposes, to wit:
(a) promote the correction and rehabilitation of an offender by providing him
with individualized treatment;
(b) provide an opportunity for the reformation of a penitent
offender which might be less probable if he were to serve a prison sentence; and
(c) prevent the commission of offenses.45
As I have previously indicated in Colinares, if this Court will adopt as
jurisprudential doctrine the opinion that an accused may still be allowed to apply
for probation even if he has filed a notice of appeal, it must be categorically stated
that such appeal must be limited to the following grounds:
1. When the appeal is merely intended for the correction of the penalty
imposed by the lower court, which when corrected would entitle the accused
to apply for probation; and
_______________
43 Dean v. State, 57 So.3d 169 (2010)
44 170 Wash. 2d 103, 239 P.3d 1102 (2010). (Emphasis supplied)
45 P.D. No. 968, Sec. 2. (Emphasis supplied)
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258 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
2. When the appeal is merely intended to review the crime for which
the accused was convicted and that the accused should only be liable to the
lesser offense which is necessarily included in the crime for which he was
originally convicted and the proper penalty imposable is within the
probationable period.
In both instances, the penalty imposed by the trial court for the crime
committed by the accused is more than six years; hence, the sentence disqualifies
the accused from applying for probation. The accused should then be allowed to file
an appeal under the aforestated grounds to seek a review of the crime and/or
penalty imposed by the trial court. If, on appeal, the appellate court finds it proper
to modify the crime and/or the penalty imposed, and the penalty finally imposed is
within the probationable period, the accused should still be allowed to apply for
probation.
P a g e 237 | 279
 In addition, before an appeal is filed based on the grounds enumerated above,
the accused should first file a motion for reconsideration of the decision of the trial
court anchored on the above stated grounds and manifest his intent to apply for
probation if the motion is granted. The motion for reconsideration will give the trial
court an opportunity to review and rectify any errors in its judgment, while the
manifestation of the accused will immediately show that he is agreeable to the
judgment of conviction and does not intend to appeal from it, but he only seeks a
review of the crime and/or penalty imposed, so that in the event that the penalty
will be modified within the probationable limit, he will immediately apply for
probation. Without such motion for reconsideration, the notice of appeal should be
denied outright.
The notice of appeal should contain the following averments:
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(1) that an earlier motion for reconsideration was filed but was denied by the
trial court;
(2) that the appeal is only for reviewing the penalty imposed by the lower
court or the conviction should only be for a lesser crime necessarily included in the
crime charged in the information; and
(3) that the accused-appellant is not seeking acquittal of the conviction.
To note, what Section 4 of the Probation Law prohibits is an appeal from
the judgment of conviction, which involves a review of the merits of the case and
the determination of whether the accused is entitled to acquittal. However, under
the recommended grounds for appeal which were enumerated earlier, the purpose
of the appeal is not to assail the judgment of conviction but to question only the
propriety of the sentence, particularly the penalty imposed or the crime for which
the accused was convicted, as the accused intends to apply for probation upon
correction of the penalty or conviction for the lesser offense. If the CA finds it proper
to modify the sentence, and the penalty finally imposed by the appellate court is
within the probationable period, or the crime for which the accused is eventually
convicted imposes a probationable penalty, application for probation after the case
is remanded to the trial court for execution should be allowed.
It is believed that the recommended grounds for appeal do not contravene
Section 4 of the Probation Law, which expressly prohibits only an appeal from the
judgment of conviction. In such instances, the ultimate reason of the accused for
filing the appeal based on the aforestated grounds is to determine whether he may
avail of probation based on the review by the appellate court of the crime and/or
penalty imposed by the trial court. Allowing the aforestated grounds for appeal
would give an accused the opportunity to apply for probation if his ground for
appeal is found to be meritorious by the appellate court, thus, serving the purpose
of the Proba-
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260 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
tion Law to promote the reformation of a penitent offender outside of prison.
On the other hand, probation should not be granted to the accused in the
following instances:
1. When the accused is convicted by the trial court of a crime where the
penalty imposed is within the probationable period or a fine, and the accused
files a notice of appeal; and
2. When the accused files a notice of appeal which puts the merits of
his conviction in issue, even if there is an alternative prayer for the
correction of the penalty imposed by the trial court or for a conviction to a
lesser crime, which is necessarily included in the crime in which he was
convicted where the penalty is within the probationable period.
Both instances violate the spirit and letter of the law, as Section 4 of the
Probation Law prohibits granting an application for probation if an appeal from
the sentence of conviction has been perfected by the accused.
In this case, petitioner appealed the trial court’s judgment of conviction before
the CA alleging that it was error on the part of the RTC to have found him guilty
of violating Section 5(b), Article III of R.A. No. 7610. He argued that the RTC should
not have given much faith and credence to the testimony of the victim because it
was tainted with inconsistencies. Moreover, he went on to assert that even
assuming he committed the acts imputed on him, still there was no evidence
showing that the lascivious acts were committed without consent or through force,
duress, intimidation or violence because the victim at that time was in deep
slumber. It is apparent that petitioner anchored his appeal on a claim of innocence
and/or lack of sufficient evidence to support his conviction of the offense charged,
which is clearly inconsistent with the tenor of the Probation Law that only qualified
penitent offender are allowed to apply for probation. The CA,
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therefore, did not err in applying the similar case of Lagrosa v. People46 wherein
the protestations of petitioners therein did not simply assail the propriety of the
penalties imposed but meant a profession of guiltlessness, if not complete
innocence.
To be sure, if petitioner intended in the first instance to be entitled to apply for
probation he should have admitted his guilt and buttressed his appeal on a claim
that the penalty imposed by the RTC was erroneous or that he is only guilty of a
lesser offense necessarily included in the crime for which he was originally
convicted. Unfortunately for him, he already perfected his appeal and it is late in
P a g e 238 | 279
the day to avail the benefits of probation despite the imposition of the CA of a
probationable penalty.
As regards the CA Decision convicting petitioner of the crime of Acts of
Lasciviousness under Article 336 of the RPC, such conclusion clearly contravenes
the law and existing jurisprudence.
Petitioner was charged and convicted by the trial court with violation of Section
5(b), Article III of R.A. No. 7610 based on the complaint of a sixteen (16)-year-old
girl for allegedly molesting her by touching her breast and vagina while she was
sleeping. The provision reads:
SEC. 5. Child Prostitution and Other Sexual Abuse.—Children,
whether male or female, who for money, profit, or any other consideration
or due to the coercion or influence of any adult, syndicate or group,
indulge in sexual intercourse or lascivious conduct, are deemed to be
children exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion
perpetua shall be imposed upon the following:
xxxx
_______________
46 Lagrosa v. People, supra note 11.
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262 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
(b) Those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subject to other sexual
abuse; Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for
rape or lascivious conduct, as the case may be: Provided, That the penalty
for lascivious conduct when the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period. x x x (Emphasis supplied)
The elements of sexual abuse are as follows:
1. The accused commits the act of sexual intercourse or lascivious
conduct.
2. The said act is performed with a child exploited in prostitution or
subjected to sexual abuse.
3. The child, whether male or female, is below 18 years of age.47
Under Section 5, Article III of R.A. No. 7610, a child is deemed subjected to
other sexual abuse when he or she indulges in lascivious conduct under the coercion
or influence of any adult.48 This statutory provision must be distinguished from
Acts of Lasciviousness under Articles 336 and 339 of the
CRIMINAL LAW | PENALTIES
_______________
47 People v. Larin, 357 Phil. 987, 997; 297 SCRA 309, 318 (1998). See also Imbo
v. People, G.R. No. 197712, April 20, 2015, 756 SCRA 196; People v. Gaduyon, G.R.
No. 181473, November 11, 2013, 709 SCRA 129, 149; Caballo v. People, G.R. No.
198732, June 10, 2013, 698 SCRA 227, 238; Navarrete v. People, 542 Phil. 496, 510;
513 SCRA 509, 521 (2007); and Amployo v. People, 496 Phil. 747, 758; 457 SCRA
282, 295 (2005).
48 Olivarez v. Court of Appeals, 503 Phil. 421, 432; 465 SCRA 465, 475 (2005),
citing People v. Larin, id., and Amployo v. People, id.
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Dimakuta vs. People
RPC. As defined in Article 336 of the RPC, Acts of Lasciviousness has the
following elements:
(1) That the offender commits any act of lasciviousness or lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise
unconscious; or
c. When the offended party is under 12 years of age; and
(3) That the offended party is another person of either sex.49
Article 339 of the RPC likewise punishes acts of lasciviousness committed with
the consent of the offended party if done by the same persons and under the same
circumstances mentioned in Articles 337 and 338 of the RPC, to wit:
1. if committed against a virgin over twelve years and under eighteen
years of age by any person in public authority, priest, home-servant, domestic,
guardian, teacher, or any person who, in any capacity, shall be entrusted with the
education or custody of the woman; or
2. if committed by means of deceit against a woman who is single or a widow
of good reputation, over twelve but under eighteen years of age.
Therefore, if the victim of the lascivious acts or conduct is over 12 years of age
and under eighteen (18) years of age, the accused shall be liable for:
_______________
49 People v. Bonaagua, G.R. No. 188897, June 6, 2011, 650 SCRA 620,
638; Flordeliz v. People, 628 Phil. 124, 140-141; 614 SCRA 225, 240-241
(2010); Navarrete v. People, supra note 47 at p. 506; p. 517; and Amployo v.
People, supra note 47 at p. 755; pp. 291-292.
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 264
264 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
1. Other acts of lasciviousness under Art. 339 of the RPC, where the
victim is a virgin and consents to the lascivious acts through abuse of
confidence or when the victim is single or a widow of good
reputation and consents to the lascivious acts through deceit;
2. Acts of lasciviousness under Art. 336 if the act of lasciviousness is
not covered by lascivious conduct as defined in R.A. No. 7610. In case the
acts of lasciviousness is covered by lascivious conduct under R.A. No. 7610
and it is done through coercion or influence, which establishes absence or
lack of consent, then Art. 336 of the RPC is no longer applicable; or
3. Section 5(b), Article III of R.A. No. 7610, where there was no consent
on the part of the victim to the lascivious conduct, which was done through
the employment of coercion or influence. The offender may likewise be liable
for sexual abuse under R.A. No. 7610 if the victim is at least eighteen (18)
years and she is unable to fully take care of herself or protect herself from
abuse, neglect, cruelty, exploitation or discrimination because of a physical
or mental disability or condition.50
Article 226-A, paragraph 2 of the RPC, punishes inserting of the penis into
another person’s mouth or anal orifice, or any instrument or object, into the genital
or anal orifice of another person if the victim did not consent either it was done
through force, threat or intimidation; or when the victim is deprived of reason or is
otherwise unconscious; or by means of fraudulent machination or grave abuse of
authority as sexual assault as a form of rape. However, in instances where the
lascivious conduct is covered by the definition under R.A. No. 7610, where the
penalty is reclusion temporal medium, and the act is likewise covered by sexual
assault under Article
_______________
50 R.A. No. 7610, Sec. 3(a).
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Dimakuta vs. People
266-A, paragraph 2 of the RPC, which is punishable by prisión mayor, the
offender should be liable for violation of Section 5(b), Article III of R.A. No. 7610,
where the law provides for the higher penalty of reclusion temporal medium, if the
offended party is a child victim. But if the victim is at least eighteen (18) years of
age, the offender should be liable under Art. 266-A, par. 2 of the RPC and not R.A.
No. 7610, unless the victim is at least eighteen (18) years and she is unable to fully
take care of herself or protect herself from abuse, neglect, cruelty, exploitation or
CRIMINAL LAW | PENALTIES
discrimination because of a physical or mental disability or condition, in which
case, the offender may still be held liable for sexual abuse under R.A. No. 7610.
There could be no other conclusion, a child is presumed by law to be incapable
of giving rational consent to any lascivious act, taking into account the
constitutionally enshrined State policy to promote the physical, moral, spiritual,
intellectual and social well-being of the youth, as well as, in harmony with the
foremost consideration of the child’s best interests in all actions concerning him or
her.51 This is equally consistent with the declared policy of the State to provide
special protection to children from all forms of abuse, neglect,
cruelty, exploitation and discrimination, and other conditions prejudicial to their
development; provide sanctions for their commission and carry out a program for
prevention and deterrence of and crisis intervention in situations of child abuse,
exploitation, and discrimination.52 Besides, if it was the intention of the framers of
the law to make child offenders liable only of Article 266-A of the RPC, which
provides for a lower penalty than R.A. No. 7610, the law could have expressly made
such statements.
_______________
51 See Malto v. People, 560 Phil. 119, 139-142; 533 SCRA 643, 664 (2007).
52 R.A. No. 7610, Art. 1, Sec. 2.
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266 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
As correctly found by the trial court, all the elements of sexual abuse under
Section 5(b), Article III of R.A. No. 7610 are present in the case at bar.
First, petitioner’s lewd advances of touching the breasts and vagina of his
hapless victim constitute lascivious conduct as defined in Section 32, Article XIII
of the Implementing Rules and Regulations (IRR) of R.A. No. 7610:
[T]he intentional touching, either directly or through clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction
of any object into the genitalia, anus or mouth, of any person, whether of
the same or opposite sex, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic area of a
person.53
Second, petitioner clearly has moral ascendancy over the minor victim not just
because of his relative seniority but more importantly due to the presumed
presence of mutual trust and confidence between them by virtue of an existing
employment relationship, AAA being a domestic helper in petitioner’s household.
Notably, a child is considered as sexually abused under Section 5(b) of R.A. No.
7610 when he or she is subjected to lascivious conduct under the coercion or
influence of any adult. Intimidation need not necessarily be irresistible. It is
P a g e 240 | 279
sufficient that some compulsion equivalent to intimidation annuls or subdues the
free exercise of the will of the offended party.54 The law does not require physical
vio-
_______________
53 People v. Larin, supra note 47 at pp. 1005-1006; p. 326. See also Imbo v.
People, supra note 47; People v. Gaduyon, supra note 47 at p. 148; Navarrete v.
People, supra note 47 at p. 511; pp. 521-522; and Amployo v. People, supra note 47
at p. 759; p. 295.
54 People v. Gerandoy, G.R. No. 202838, September 17, 2014, 735 SCRA 520,
540; Caballo v. People, supra note 47 at pp. 242-243; Garingarao v. People, 669
Phil. 512, 524; 654 SCRA 243, 254-255 (2011); People
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Dimakuta vs. People
lence on the person of the victim; moral coercion or ascendancy is
sufficient.55 On this point, Caballo v. People56 explicated:
As it is presently worded, Section 5, Article III of RA 7610 provides that when
a child indulges in sexual intercourse or any lascivious conduct due to the
coercion or influence of any adult, the child is deemed to be a “child exploited
in prostitution and other sexual abuse.” In this manner, the law is able to act
as an effective deterrent to quell all forms of abuse, neglect, cruelty, exploitation
and discrimination against children, prejudicial as they are to their development.
In this relation, case law further clarifies that sexual intercourse or lascivious
conduct under the coercion or influence of any adult exists when there is some
form of compulsion equivalent to intimidation which subdues the free
exercise of the offended party’s free will. Corollary thereto, Section 2(g) of the
Rules on Child Abuse Cases conveys that sexual abuse involves the element of
influence which manifests in a variety of forms. It is defined as:
The employment, use, persuasion, inducement, enticement or coercion
of a child to engage in, or assist another person to engage in, sexual
intercourse or lascivious conduct or the molestation, prostitution, or incest
with children.
To note, the term “influence” means the “improper use of power or trust in any
way that deprives a person of free will and substitutes another’s objective.”
Meanwhile, “coercion” is the “improper use of x x x power to compel another to
submit to the wishes of one who wields it.”57
_______________
v. Rellota, 640 Phil. 471; 626 SCRA 422 (2010); People v. Abello, supra note 5 at p.
393; p. 395; and Amployo v. People, supra note 47 at p. 759; pp. 295-296.
55 People v. Larin, supra note 47 at p. 1008; p. 329.
56 Caballo v. People, supra note 47.
57 Id., at pp. 242-243.
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268 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
Finally, the victim is 16 years of age at the time of the commission of the
offense. Under Section 3(a) of R.A. No. 7610, “children” refers to “persons below
eighteen (18) years of age or those over but unable to fully take care of themselves
or protect themselves from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition.”
The decision of the trial court finding the petitioner guilty of Violation of Section
5(b), Article III R.A. No. 7610 should have been upheld by the CA instead of
erroneously adopting the recommendation of the OSG, which inaccurately relied
on People v. Abello.58 In said case, the decisive factor for the acquittal of the accused
was not the absence of coercion or intimidation on the offended party, who was then
sleeping at the time the lascivious act was committed, but the fact that the victim
could not be considered as a “child” under R.A. No. 7610. This Court held that while
the twenty-one-year-old woman has polio as a physical disability that rendered her
incapable of normal function, the prosecution did not present any testimonial or
documentary evidence — any medical evaluation or finding from a qualified
physician, psychologist or psychiatrist — attesting that the physical condition
rendered her incapable of fully taking care of herself or of protecting herself against
sexual abuse.
Thus, it is clear that petitioner could not have been entitled to apply for
probation in the first place. Regrettably, since neither the accused nor the OSG
questioned the CA Decision, it has attained finality and to correct the error at this
stage is already barred by the right of the accused against double jeopardy.
Based on the above disquisitions, the petitioner should be denied the benefit of
the Probation Law and that the Court should adopt the recommendations above
stated in situations where an accused files an appeal for the sole purpose of cor-
_______________
58 People v. Abello, supra note 5.58 People v. Abello, supra note 5.
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Dimakuta vs. People
recting the penalty imposed to qualify him for probation or where he files an
appeal specifically claiming that he should be found guilty of a lesser offense
necessarily included with the crime originally filed with a prescribed penalty which
is probationable.
SO ORDERED.
Sereno (CJ.), Brion, Bersamin, Villarama, Jr., Reyes and Perlas-Bernabe,
JJ., concur.
P a g e 241 | 279
 Carpio, Del Castillo and Perez, JJ., On Official Leave.
Velasco, Jr., J., I join dissent of Justice Mendoza and register also my
Dissenting Opinion.
Leonardo-De Castro, J., I join the Dissenting Opinion of Justice Mendoza.
Mendoza, J., See Dissenting Opinion.
Leonen, J., See Concurring Opinion.
Jardeleza, J., No part.
DISSENTING OPINION
VELASCO, JR., J.:
When the law does not qualify, We should not qualify.1
For resolution is the recurring question of whether an appellate court’s
downgrading of a convict’s offense or penalty — from a non-probationable to a
probationable one — subsequently entitles the accused to apply for the privilege of
probation in spite of his prior perfection of an appeal. Ultimately, this issue boils
down to the interpretation of Section 4
_______________
1 Corpuz v. People, G.R. No. 180016, April 29, 2014, 724 SCRA 1, 33,
citing Asejo v. People, 555 Phil. 106; 528 SCRA 114 (2007).
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270 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
of Presidential Decree (PD) No. 968, otherwise known as the Probation Law of
1976, as amended by PD No. 1990.2 The provision pertinently reads:
Sec. 4. Grant of Probation.—Subject to the provisions of this Decree,
the trial court may, after it shall have convicted and sentenced a defendant
and upon application by said defendant within the period for perfecting an
appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may
deem best; Provided, that no application for probation shall be
entertained or granted if the defendant perfected the appeal from
the judgment of conviction. (emphasis ours)
Initially, the Court strictly interpreted the provision as barring the convicted
felon from applying for probation if he opted to resort to filing an appeal. 3 The
rationale behind the disqualification was enunciated by the Court in Francisco v.
Court of Appeals, thus:
CRIMINAL LAW | PENALTIES
Probation is a special privilege granted by the state to a penitent qualified
offender. It essentially rejects appeals and encourages an otherwise
eligible convict to immediately admit his liability and save the state of time,
effort and expenses to jettison an appeal. The law expressly requires that an
accused must not have appealed his conviction before he can avail of
probation. This outlaws the element of speculation on the part of the accused —
to wager on the result of his appeal — that when his conviction is finally af-
_______________
2 Amending Presidential Decree no. 968, otherwise known as the Probation
Law of 1976.
3 See Almero v. People, G.R. No. 188191, March 12, 2014, 718 SCRA
698; Colinares v. People, G.R. No. 182748, December 13, 2011, 662 SCRA 266; Sable
v. People, G.R. No. 177961, April 7, 2009, 584 SCRA 619; Soriano v. Court of
Appeals, G.R. No. 123936, March 4, 1999, 304 SCRA 231.
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Dimakuta vs. People
firmed on appeal, the moment of truth well-nigh at hand, and the service of his
sentence inevitable, he now applies for probation as an “escape hatch” thus
rendering nugatory the appellate court’s affirmance of his conviction.
Consequently, probation should be availed of at the first opportunity by
convicts who are willing to be reformed and rehabilitated, who manifest
spontaneity, contrition and remorse.4 (emphasis ours)
So it was held that perfecting an appeal automatically disqualifies a convicted
offender from availing of the benefits of the Probation Law, regardless of the
grounds invoked in the appeal lodged, and of whether or not the appeal resulted in
the downward modification of the offense or the penalty imposed from a non-
probationable to a probationable one.
This reading of the aforequoted proviso, however, has repeatedly been debated
upon in various cases of differing factual settings. 5 And in these cases, the Court
constantly entertained the prospect of abandoning, if not substantially modifying,
this rigid interpretation to allow a penitent offender to apply for probation if he
only became qualified to apply for the benefits under the law after an appellate
court downgraded his offense or the penalty meted.
It will not be until December of 2011, in Colinares v. People,6 when the Court
would take a different posture in interpreting Sec. 4 of PD No. 968, as amended.
In Colinares, the Court was emphatic in its position that the error of a lower
court should not deprive the offender of the opportunity to seek the privilege of
probation. In the words of the ponencia therein, “[a]ng kabayo ang nagkasala,
_______________
4 Francisco v. Court of Appeals, G.R. No. 108747, April 6, 1995, 243 SCRA 384,
386-387.
P a g e 242 | 279
 5 See Colinares v. People, supra note 3; Lagrosa v. People, G.R. No. 152044,
July 3, 2003, 405 SCRA 357; Francisco v. Court of Appeals, id.
6 Id.
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272 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
ang hagupit ay sa kalabaw (The horse errs, the carabao gets the whip).”7 Thus,
in the face of strong dissent, the majority rejected the traditional interpretation of
Sec. 4 and refused to read the provision as prohibiting the offender from applying
for the benefit of probation if the appeal was made when the privilege of probation
is not yet available.8
As held in Colinares, the appellate court’s downward modification of the
penalty meted, from a non-probationable to a probationable one, amounted to
an original conviction for a probationable penalty. Under such circumstance, the
Court held that the offender should still be allowed to apply for the privilege of
probation in spite of his prior perfection of an appeal because the appeal was
made at a time when he was not yet a qualified offender. In other words,
therein offender has not yet lodged an appeal from the original judgment of
conviction of a probationable penalty, qualifying him to apply for probation under
Sec. 4.
Regrettably, several members of the Court remain reluctant in adopting this
novel interpretation in Colinares, continually reasoning that the wording of
the proviso is clear and leaves no room for interpretation, and arguing that the
Probation Law is not a penal statute that must be construed liberally in favor of
the accused.9 As in the case at bar, instead of applying squarely the teaching
in Colinares, the majority deviated therefrom and needlessly imposed additional
restrictions before one could avail of the benefits under the Probation Law.
The ponencia ruled herein that for the accused to be allowed to apply for
probation even if he has filed an appeal, the appeal should be anchored only on the
following grounds:
_______________
7 Id., at p. 279.
8 Id., at p. 280.
9 Francisco v. Court of Appeals, supra note 4 at p. 390.
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1. When the appeal is merely intended for the correction of the penalty
imposed by the lower court, which, when corrected, would entitle the accused to
apply for probation; and
2. When the appeal is merely intended to review the crime for which the accused
was convicted and that the accused should only be liable for the lesser offense which
is necessarily included in the crime for which he was originally convicted and the
proper penalty imposable is within the probationable period.
The majority is, in effect, affirming Colinares in making the grant of probation
allowable even after appeal, to which I agree. The similarity between the
interpretations of Sec. 4 in Colinares and in the disposition of this case, however,
ends here. Meanwhile, divergence arises from the varying analysis of the phrase
“appeal from the judgment of conviction,” which is a basis for disqualification under
Sec. 4. Here, the majority puts premium on the grounds invoked in the “appeal”
adverted to, in that the appeal should not question the finding of guilt and should
not insist on the defendant’s acquittal, regardless of the penalty imposed and the
crime the offender is convicted of. In contrast, Colinares deems more significant the
“judgment of conviction,” rendering the grounds the appeal was anchored on
immaterial. Instead, what is of primordial consideration in Colinares was whether
or not the defendant was convicted of a probationable offense or was meted a
probationable penalty. If not, the defendant will still be allowed to appeal his
conviction on any ground, without losing the right to apply for probation in the
event that the appellate court reclassifies his offense or downgrades his sentence
to a probationable one.
Of the two interpretations, I respectfully submit that the Court’s holding
in Colinares should be sustained. Therefore, I register my vote to GRANT the
instant petition.
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With all due respect to my colleagues, allow me to express my reservations on
the Court’s imposition of prerequisites before an offender may avail of the benefits
of the Probation Law.
Firstly, the conditions imposed by the majority run counter to the spirit of the
Probation Law.
Recall the wording of the provision:
Sec. 4. Grant of Probation.—Subject to the provisions of this Decree,
the trial court may, after it shall have convicted and sentenced a defendant
and upon application by said defendant within the period for perfecting an
appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may
deem best; Provided, that no application for probation shall be entertained
P a g e 243 | 279
 or granted if the defendant perfected the appeal from the judgment of
conviction.
Sec. 4 clearly commands that “no application for probation shall be entertained
or granted if the defendant perfected the appeal from the judgment of conviction.”
At first blush, there is nothing vague in the provision that calls for judicial
interpretation. The provision, as couched, mandates that the perfection of an
appeal disqualifies an otherwise qualified offender from applying for probation.
Nevertheless, I fully concur with the Court’s ruling in Colinares that the bar
must be applied only to offenders who were already qualified to apply for probation
but opted to file an appeal instead. An otherwise rigid application of the rule would
defeat the very purpose of the Probation Law, which is giving a qualified penitent
offender the opportunity to be placed on probation instead of being incarcerated.
The preambulatory clause of PD No. 1990 says as much:
WHEREAS, it has been the sad experience that persons who are
convicted of offenses and who
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may be entitled to probation still appeal the judgment of conviction
even up to the Supreme Court, only to pursue their application for probation
when their appeal is eventually dismissed; x x x. (emphasis ours)
Verily, the clause uses the conjunctive word “and” in qualifying the type of
offenders to whom the amendment applies. Unmistakably, it refers not simply to
convicted offenders in general, but more specifically to qualified convicted
offenders. What PD No. 1990 then contemplates and seeks to address is the
situation where qualified convicted offenders showed lack of repentance by
appealing their conviction instead of admitting their guilt and asking for the State’s
graciousness and liberality by applying for the privilege of probation.
This supports the majority opinion in Colinares that the disqualification under
Sec. 4 does not cover a formerly disqualified convicted offender who later on
becomes qualified to apply for probation by reason of a partially meritorious appeal,
sustaining the conviction but for a lesser offense or penalty. To reiterate, the
reduction of the penalty imposed in Colinares, from a non-probationable to a
probationable one, amounted to an original conviction from which no appeal has
yet been taken, and thereby qualifies the convicted felon to apply for probation
under the law.
Unlike this modification in the interpretation of Sec. 4 of PD No. 968 that was
introduced in Colinares, the ponencia’s imposition of additional restrictions for
availing of the benefits under the Probation Law is not in keeping with the spirit
of the law. To recall, the ponencia intimates that the added restrictions are based
on the argument that what is prohibited under the Probation Law is challenging
the judgment of conviction, which, in the majority’s posture, is the finding of guilt,
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without distinction on whether the penalty imposed is probationable or not.
According to the majority, the accused may still lodge an appeal and qualify for
probation if the appeal is limited to praying for the reduction of the penalty imposed
or downgrading the crime he is convicted of, and
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Dimakuta vs. People
should in no way insist on his innocence. With these requirements in place, the
majority effectively would want the accused to change his theory of the case and
belatedly plead guilty on appeal to a lesser offense, akin to a last minute plea-
bargain.
The problem here is that the ponencia’s interpretation is tantamount to forcing
the accused to already forego appealing for his acquittal at a time that probation is
not yet available. This goes against the rationale of the law, which seeks to
discourage from appealing only those who are, in the first place, already
qualified to apply for probation, but waste the opportunity by insisting on
their innocence. What is more, the ponencia’s restrictive proposition would lead
to a baffling result — the very appeal that would have qualified the
convicted felon to apply for probation (i.e., the appeal that resulted in the
downgrading of the offense or the reduction of the penalty to a
probationable one) would also be the very same appeal that would
disqualify him from availing thereof.
More on this first point, recall that the Probation Law was enacted for the
following reasons:
WHEREAS, one of the major goals of the government is to establish a
more enlightened and humane correctional system that will promote the
reformation of offenders and thereby reduce the incidence of recidivism;
WHEREAS, the confinement of all offenders in prisons and other
institutions with rehabilitation programs constitutes an onerous drain on
the financial resources of the country; and
WHEREAS, there is a need to provide a less costly alternative to the
imprisonment of offenders who are likely to respond to individualized,
community-based treatment programs;
On the basis thereof, PD No. 968 commands that it shall be interpreted as to:
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Dimakuta vs. People
(a) Promote the correction and rehabilitation of an offender by providing him
with individualized treatment;
P a g e 244 | 279
 (b) Provide an opportunity for the reformation of a penitent offender which
might be less probable if he were to serve a prison sentence; and
(c) Prevent the commission of offenses.10
Now, relate the legislature’s above stated rationale of the Probation Law to the
preambulatory clauses of PD No. 1990, which introduced the amendment removing
the allowance of probation after the already qualified offender appealed his
conviction, to wit:
WHEREAS, it has been the sad experience that persons who are
convicted of offenses and who may be entitled to probation still
appeal the judgment of conviction even up to the Supreme Court,
only to pursue their application for probation when their appeal is
eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution,
conviction and appeal entails too much time and effort, not to mention the
huge expenses of litigation, on the part of the State;
WHEREAS, the time, effort and expenses of the Government in
investigating and prosecuting accused persons from the lower courts up to
the Supreme Court, are oftentimes rendered nugatory when, after the
appellate Court finally affirms the judgment of conviction, the defendant
applies for and is granted probation;
WHEREAS, probation was not intended as an escape hatch and
should not be used to obstruct and delay the administration of
justice, but should be availed of at the first opportunity by
offenders who are willing to be reformed and rehabilitated;
_______________
10 Presidential Decree No. 968, Sec. 2.
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WHEREAS, it becomes imperative to remedy the problems above
mentioned confronting our probation system.11 (emphasis ours)
As can be gleaned, the declared purposes of the Probation Law and its
amendatory law all echo the State’s inclination towards a rehabilitative, as opposed
to a punitive, system. In fact, the proviso that the perfection of an appeal
disqualifies the offender from applying for probation is to ensure that the privilege
of probation is extended only to penitent qualified offenders, those the state deems
to have the potential to be rehabilitated.
In ascertaining an offender’s penitence, the Court has repeatedly held that the
qualified offender’s perfection of an appeal questioning his conviction, instead of
beseeching the State’s generosity through an application for probation at the first
opportunity, is antithetical to remorse and penitence. Bear in mind, though, that
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the amendment was prompted by the State’s past experience where qualified
offenders “wager” their chances and still seek an acquittal, only to invoke the
privilege of probation when it is almost certain that they would not be found
innocent. It would, therefore, be erroneous to apply the same principle to
offenders who are not qualified, those who had no opportunity, to seek
the privilege in the first place. We cannot expect them to immediately show
remorse via applying for probation, putting their right to appeal on the line in so
doing, when they are not even qualified for the privilege under the law. In their
case, there is no wager and no “first opportunity” to apply for probation to speak
off, but a clear lack of option on the part of the offenders. They had no other choice
but to appeal.
Secondly, the majority’s imposition of said conditions is in violation of the
constitutionally-mandated separation of powers underlying the very existence of
the government.
_______________
11 Presidential Decree No. 1990.
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Dimakuta vs. People
Well-entrenched is the rule that the primordial duty of the Court is merely to
apply the law in such a way that it does not usurp legislative powers by judicial
legislation.12 Thus, in the course of such application or construction, it should not
make or supervise legislation, or under the guise of interpretation, modify, revise,
amend, distort, remodel, or rewrite the law, or give the law a construction which is
repugnant to its terms.13 The Court should shy away from encroaching upon the
primary function of a coequal branch of the Government; otherwise, this would lead
to an inexcusable breach of the doctrine of separation of powers by means of judicial
legislation.14
To hold, in the case at bar, that a formerly disqualified offender who only
became qualified for probation after judgment by an appellate court is still
disqualified from applying for the privilege is tantamount to amending the
law via judicial interpretation. With the Court’s disposition of the instant petition,
the majority is effectively placing additional qualifications and grounds for
disqualification that not only cannot be found anywhere in the four corners of the
statute, but, worse, defeat the very purpose for which the Probation Law was
enacted.
Had the Probation Law intended the exclusion of formerly disqualified
offenders from those who may avail of the privilege, then it would have included
such exclusion in the list of disqualified offenders under Sec. 9 of PD No. 968, as
amended, which, in its entirety, reads:
Sec. 9. Disqualified Offenders.—The benefits of this Decree shall not be
extended to those:
P a g e 245 | 279
 (a) sentenced to serve a maximum term of imprisonment of more than
six years;
(b) convicted of subversion or any crime against the national security
or the public order;
_______________
12 Corpuz v. People, supra note 1 at p. 57.
13 Id.
14 Id.
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280 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
(c) who have previously been convicted by final judgment of an offense
punished by imprisonment of not less than one month and one day and/or a
fine of not less than Two Hundred Pesos;
(d) who have been once on probation under the provisions of this
Decree; and
(e) who are already serving sentence at the time the substantive
provisions of this Decree became applicable pursuant to Section 33 hereof.
These disqualifications listed under Sec. 9 should be differentiated from the
disqualification under Sec. 4. Sec. 9 enumerates the legal bars from acquiring
the eligibility to apply for probation. Meanwhile, the Sec. 4 proviso states
the manner on how one loses the eligibility to apply for probation which he
already possesses. To interpret here then that an offender who is not yet qualified
to apply for probation may be prejudiced by the grounds he would raise in his
appeal would mean amending Sec. 9 so as to include those who have raised their
guilt as an issue on appeal.
This unwarranted judicial amendment to the law violates the fundamental
maxim “expressio unius est exclusio alterius.” The express mention of one person,
thing, act, or consequence excludes all others. Thus, where a statute, by its terms,
is expressly limited to certain matters, it may not, by interpretation or
construction, be extended to others. This rule is based on the premise that the
legislature would not have made specified enumerations in a statute had the
intention been not to restrict its meaning and to confine its terms to those expressly
mentioned.15
Moreover, the ponencia, in its postulation, basically legislates the timeframe
for an offender’s penitence. The ponencia
_______________
15 Romualdez v. Marcelo, G.R. Nos. 165510-33, July 28, 2006, 497 SCRA 89,
108.
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Dimakuta vs. People
is virtually sending a message to convicted felons that they should already be
penitent even before they are qualified to apply for probation to be allowed to avail
of the privilege in the off-chance that the penalty meted on them is reduced or the
crime they are convicted of is downgraded on appeal.
We have to consider though that it is only natural for a person charged with a
crime, subjected to a highly adversarial process, and going up against the “People
of the Philippines” in litigation, to be on the defensive and insist on his innocence
rather than readily sacrifice his liberty in gambling for a mere probability of
becoming eligible for, not necessarily entitled to, probation. This does not mean,
however, that he who is guilty but denies the commission of the crime even after
having been convicted by the trial court will never ever regret having committed
the offense. For his perceived lack of option, a litigant may be compelled to appeal
his conviction, without necessarily making him any less repentant later on. It
would not come as a surprise if it will only be after his appeal is heard, after the
penalty imposed upon him is lessened or after his crime was downgraded, after a
window of opportunity to receive a second lease in life opens, would his penitence
be manifest in his pleadings, would he apply for probation, and would he no longer
pursue the case or push his luck.
As explained, insisting on proving one’s innocence is an understandable natural
human behavior. It is not, at all times and in all cases, proof of depravity. In the
same way, the observance of the proposed restrictions, which are supposedly
intended to ensure that only penitent offenders are allowed to apply for the
privilege of probation, cannot guarantee that the person invoking the limited
grounds on appeal is, in fact, remorseful. Furthermore, one cannot expect an
offender to be, in all cases, impelled by remorse in applying for the probation
instead of appealing, for it may be that he sacrificed his right to fight for his
innocence out of fear of losing the privilege if he makes any further attempt thereat.
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Dimakuta vs. People
Fortunately, the grant of the privilege is entirely different from the right to
apply for its grant.16 Consider, too, that the grant is discretionary upon the trial
court, hence the use of the word “may.”17 Thus, there are other means by which the
courts may determine whether the qualified offender is indeed penitent or not,
other than looking to the grounds on which his appeal was hinged. The grounds
raised in the appeal should then be immaterial. And instead of restraining an
erstwhile disqualified offender’s right to appeal, the Court should adopt an effective
system for weeding out those who abuse the State’s generosity. This way, we can
assist in the administration of the restorative justice that the Probation Law seeks
P a g e 246 | 279
to enforce without sacrificing civil liberties or encroaching upon the power of the
Legislative Branch. To impose such restrictions on the filing of an appeal by the
disqualified convicted offender would, more often than not, result in injustice,
rather than promote the laudable purpose of the Probation Law.
Thirdly, following Colinares, the “judgment of conviction” referred to in Sec. 4
from which no appeal should be taken should, as earlier stressed, be understood to
be the original conviction for a probationable penalty or offense, and not
simply to the trial court’s first finding of guilt.
It may be tempting to interpret the phrase “judgment of conviction” to refer to
the trial court’s finding of guilt since “trial court” was specifically mentioned in Sec.
4, without any reference to appellate courts. This, however, does not come as a
shock. The trial court’s mention, after all, comes naturally
_______________
16 Colinares v. People, supra note 3 at p. 278.
17 Section 4, PD No. 968, as amended, provides: “Subject to the provisions of
this Decree, the trial court may, after it shall have convicted and sentenced a
defendant and upon application by said defendant within the period for perfecting
an appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may deem best;
x x x.” (emphasis ours)
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Dimakuta vs. People
since, as the court of origin,18 the suspension of the execution of the sentence
and the placing of the defendant on probation are just a few of its functions. The
first part of Sec. 4, thus, merely echoes the rule that the execution of
judgments19 and the resolution of an application for probation20 are the duties of
the trial courts, nothing more. It should not be construed in such a way that the
appeal being referred to in said Sec. 4 is that taken only from the trial court to an
appellate court as this is an entirely different matter.
To be clear, nowhere in the Probation Law does it provide that the “appeal”
from the judgment of conviction should be that made from the trial court to the
appellate court. Hence, the “appeal” could very well refer to any of the three (3)
opportunities to seek a review of a judgment of conviction in criminal procedure:
(a) questioning the judgments of the Municipal Trial Court, Metropolitan Trial
Court, Municipal Circuit Trial Court, and of the Municipal Trial Court in Cities
_______________
18 Section 1. Execution upon judgments or final orders.—Execution shall
issue as a matter of right, on motion, upon a judgment or order that disposes of the
action or proceeding upon the expiration of the period to appeal therefrom if no
appeal has been duly perfected.
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If the appeal has been duly perfected and finally resolved, the execution may
forthwith be applied for in the court of origin, on motion of the judgment oblige,
submitting therewith certified true copies of the judgment or judgments or final
order or orders sought to be enforced and of the entry thereof, with notice to the
adverse party.
The appellate court may, on motion in the same case when, the interest of
justice so requires, direct the court of origin to issue the writ of execution. (Rules of
Court, Rule 39)
19 See Rules of Court, Rule 39, Sec. 1.
20 See Section 3, PD 968. Meaning of Terms.—x x x
(a) “Probation” is a disposition under which a defendant, after conviction and
sentence, is released subject to conditions imposed by the court and to the
supervision of a probation officer. (emphasis ours)
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284 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
before the Regional Trial Court; (b) elevating the case from the Regional Trial
Court to the Court of Appeals; and (c) by assailing the unfavorable Decision of the
Court of Appeals to this Court — the court of last resort.21
Corollarily, it is submitted that the “judgment of conviction” should not be
taken to mean the initial finding of guilt, since, as maintained by the majority
in Colinares, an original judgment of conviction may also be handed down by the
appellate courts, especially when it involves the annulment or modification of the
trial court’s decision. As discussed, the appellate court’s judgment convicting
therein defendant, for the first time, of a probationable crime or imposing upon him
a probationable penalty should be treated as an original conviction, entitling
him to apply for probation in spite of perfecting an appeal. 22 The appeal lodged by
the offender, which reduced his conviction to a probationable one, in no way
adversely affected his later-acquired eligibility.
In line with the teachings in Colinares, the Court should view the appellate
court’s judgment which effectively qualified the offender for probation
as the conviction from which the defendant should not appeal from if he
wishes to apply for the privilege of probation. This should be the case for the
simple reason that he has not yet questioned this second original conviction which
qualifies him for probation. To reiterate, what the law proscribes is the application
for probation by a defendant who has appealed his conviction for a probationable
crime or with a probationable penalty. This proscription should, therefore, come in
only when the offender has already been convicted of a probationable crime or
imposed a probationable penalty, not when he was still disqualified for probation.
Fourthly, the adoption of the conditions set by the majority in the instant case
will result in a situation where We
_______________
21 Revised Rules of Criminal Procedure, Rule 122, Section 2.
P a g e 247 | 279
 22 Colinares v. People, supra note 3 at p. 280. Lastly, in rejecting the petitioner’s plea that the Probation Law be liberally
construed in his favor, the Court ruled that PD 968 is not a penal law that would
warrant the application of the pro reo doctrine. The ruling was premised on the
instruction of the Court in Llamado v. Court of Appeals, viz.:
285 Turning to petitioner’s invocation of “liberal interpretation” of penal
VOL. 773, OCTOBER 20, 2015 285 statutes, we note at the outset that the Probation Law is not a penal statute.
We, however, understand petitioner’s argument to be really that any
Dimakuta vs. People
statutory language that appears to favor the accused in a criminal case
would be requiring from the defense lawyer a degree of diligence that is less
should be given a “liberal interpretation.” Courts, however, have no
than that expected of him under our Rules, at his client’s expense.
authority to invoke “liberal interpretation” or “the spirit of the law” where
To elucidate, We are all very much aware of a defense lawyer’s duty to his client
the words of the statute themselves, and as illuminated by the history of
in that:
that statute, leave no room for doubt or interpretation. We do not believe
that “the spirit of law” may legitimately be invoked to set at naught words
x x x A lawyer engaged to represent a client bears the responsibility of
which have a clear and definite meaning imparted to them by our
protecting the latter’s interest with utmost diligence. It is his duty to serve
procedural law. The “true legislative intent” must obviously be given effect
his client with competence and diligence, and he should exert his best efforts
by judges and all others who are charged with the application and
to protect, within the bounds of the law, the interests of his client. A lawyer’s
implementation of a statute. It is absolutely essential to bear in mind,
diligence and vigilance is more imperative in criminal cases, where the life
however, that the spirit of the law and the intent that is to be given effect
and liberty of an accused is at stake.23
are to be derived from the words actually used by the lawmaker, and not
from some external, mystical or metajuridical source independent of and
Simply put, a defense lawyer is expected to advocate his client’s
transcending the words of the legislature.
innocence in line with the principle deeply embedded in our legal system
The Court is not here to be understood as giving a “strict interpretation”
that an accused is presumed innocent until proven guilty beyond
rather than a “liberal” one to Section 4 of the Probation Law of 1976 as
reasonable doubt. The lawyer owes “entire devotion to the interest of the client,
amended by P.D. No. 1990. “Strict” and “liberal” are adjectives which too
warm zeal in the maintenance and defense of his rights and the exertion of his
frequently impede a disciplined and principled search for the meaning
utmost learning and ability,” to the end that nothing be taken or be withheld from
which the lawmaking authority projected
the latter, save by the rules of law, legally applied. 24 Thus, unless and until his
_______________
client has been convicted with finality, we cannot expect his counsel to detract, or
even require him to detract from this duty, and convince his client to simply admit
25 Id.
guilt and either seek a reduction of the penalty imposed or the downgrading of the
crime he has been convicted of just so the client may have a window of opportunity
to apply for the privilege of probation if and only if the appeal is granted. Instead,
the client, in the judicial forum, should be afforded the benefit of any and every 287
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VOL. 773, OCTOBER 20, 2015 287
23 Mattus v. Villaseca, A.C. No. 7922, October 1, 2013, 706 SCRA 477, 484. Dimakuta vs. People
24 Regala v. Sandiganbayan, First Division, G.R. Nos. 105938 & 108113, when it promulgated the language which we must apply. That meaning
September 20, 1996, 262 SCRA 122, 140. is clearly visible in the text of Section 4, as plain and unmistakable as the
nose on a man’s face. The Court is simply reading Section 4 as it is in fact
written. There is no need for the involved process of construction that
petitioner invites us to engage in, a process made necessary only because
286 petitioner rejects the conclusion or meaning which shines through the words
286 SUPREME COURT REPORTS ANNOTATED of the statute. The first duty of a judge is to take and apply a statute as he
finds it, not as he would like it to be.26
Dimakuta vs. People
remedy and defense that is authorized by the law of the land, and he may expect
This oft-cited ratio in supporting the continued refusal to reject the proposed
his lawyer to assert every such remedy or defense.25
application of Sec. 4, however, must also be reconsidered since this cited

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pronouncement of the Court actually deals with a different issue, albeit pertaining
to the same provision.
It bears noting that Llamado dealt with the issue of whether or not petitioner’s
application for probation, which was filed after a notice of appeal had been filed
with the trial court, after the records of the case had been forwarded to the Court
of Appeals, after the Court of Appeals had issued the notice to file Appellant’s Brief,
after several extensions of time to file Appellant’s Brief had been sought from and
granted by the Court of Appeals, but before actual filing of such brief, is barred
under PD No. 968, as amended.27 In essence, it dealt with the alleged
establishment by the amendment of a narrower period during which an application
for probation may be filed with the trial court. As the Court clarified:
In applying Section 4 in the form it exists today (and at the time
petitioner Llamado was convicted by the trial court), to the instant case, we
must then inquire whether petitioner Llamado had submitted his
application for probation “within the period for perfecting an ap-
_______________
26 Llamado v. Court of Appeals, G.R. No. 84850, June 29, 1989, 174 SCRA 566,
577-578.
27 Id., at p. 576.
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288 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
peal.” Put a little differently, the question is whether by the time
petitioner Llamado’s application was filed, he had already
“perfected an appeal” from the judgment of conviction of the
Regional Trial Court of Manila.28 (emphasis ours)
A reading of Llamado reveals that the Court’s refusal to liberally interpret Sec.
4 actually referred to the phrase “period for perfecting an appeal” and not
the proviso being discussed in the present case. It was therein petitioner’s
argument that:
x x x the phrase “period for perfecting an appeal” and the clause “if the
defendant has perfected an appeal from the judgment of conviction” found
in Section 4 in its current form, should not be interpreted to refer to Rule
122 of the Revised Rules of Court; and that the “whereas” or preambulatory
clauses of P.D. No. 1990 did not specify a period of fifteen (15) days for
perfecting an appeal. It is also urged that “the true legislative intent of the
amendment (P.D. No. 1990) should not apply to petitioner who filed his
Petition for probation at the earliest opportunity then prevailing and
withdrew his appeal.”29
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which the Court flatly rejected for the ensuing reason:
We find ourselves unable to accept the eloquently stated arguments of
petitioner’s counsel and the dissenting opinion. We are unable to
persuade ourselves that Section 4 as it now stands, in authorizing
the trial court to grant probation “upon application by [the]
defendant within the period for perfecting an appeal” and in
reiterating in the proviso that:
no application for probation shall be entertained or granted if
the defendant has
_______________
28 Id., at p. 574.
29 Id., at p. 575.
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Dimakuta vs. People
perfected an appeal from the judgment of conviction.
did not really mean to refer to the fifteen-day period
established, as indicated above, by B.P. Blg. 129, the Interim Rules
and Guidelines Implementing B.P. Blg. 129 and the 1985 Rules on
Criminal Procedure, but rather to some vague and undefined
time, i.e., “the earliest opportunity” to withdraw the defendant’s
appeal. The whereas clauses invoked by petitioner did not, of course, refer
to the fifteen-day period. There was absolutely no reason why they should
have so referred to that period for the operative words of Section 4 already
do refer, in our view, to such fifteen-day period. x x x x Upon the other hand,
the term “period for perfecting an appeal” used in Section 4 may be seen to
furnish specification for the loose language “first opportunity” employed in
the fourth whereas clause. “Perfection of an appeal” is, of course, a term of
art but it is a term of art widely understood by lawyers and judges and
Section 4 of the Probation Law addresses itself essentially to judges and
lawyers. “Perfecting an appeal” has no sensible meaning apart from
the meaning given to those words in our procedural law and so the
lawmaking agency could only have intended to refer to the meaning
of those words in the context of procedural law.30 (emphasis ours)
With the above, it is evident that when this Court pronounced in Llamado its
refusal to liberally apply Sec. 4 of the Probation Law, as amended, it was doing so
within the context of interpreting the phrase “period for perfecting an appeal,”
which, as we all know, has a definite meaning in procedural law. It is therefore,
P a g e 249 | 279
understandable why the Court, in Llamado, rejected therein petitioner’s request
for a liberal interpretation of the phrase.
_______________
30 Id., at pp. 576-577.
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290 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
In conclusion, it is simply incorrect for the Court to interpret Sec. 4 as
prohibiting the defendant from arguing for his acquittal at a time that the privilege
of probation is not yet available to him. To follow the ponencia’s interpretation
would lead to a scenario wherein the Court would be
subjecting disqualified offenders to the requirements of applying for probation in
spite of their patent ineligibility (by reason of the penalty imposed or the
categorization of the offense).
The more precise interpretation, therefore, would be to grant this
opportunity to apply for probation when the accused is originally
convicted for a probationable offense or sentenced to suffer a
probationable penalty, without distinction on whether the said “original
conviction” was issued by the trial court or appellate court. What is
material is that the application for the privilege of probation be made at the first
opportunity, which is the period to appeal from when the offender first
became qualified for the privilege. For how can we say that the convicted
offender wagered for an acquittal on appeal instead of applying for probation when
he is not qualified to avail of the benefits of the Probation Law in the first place?
He simply had no other option at that point.
As in Colinares, petitioner in this case became qualified for probation only after
the appellate court modified the trial court’s ruling. If, notwithstanding this
downward modification of the penalty imposed or the crime the accused
is convicted of, the now qualified defendant still appeals his new
conviction on whatever ground, then, this would be the time when his
appeal would bar him from applying for the privilege under Sec. 4.
While it is true that there is a risk that the abuse of the State’s generosity by
convicted offenders may still persist because of Colinares, we should not, however,
deprive all accused persons, whether guilty or not, the opportunity to defend
themselves and their liberty and to prove their case, lest we run the risk of forcing
innocent persons to forego their
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Dimakuta vs. People
CRIMINAL LAW | PENALTIES
liberty simply because applying for probation is easier than proving their
innocence. To me, this might, more often than not, result in a failure of justice
rather than its administration.
In view of the foregoing disquisitions, I reiterate my vote to GRANT the instant
petition.
DISSENTING OPINION
MENDOZA, J.:
In this petition for review on Certiorari, petitioner Mustapha
Dimakuta y Maruhom @ Boyet (Mustapha) seeks to reverse and set aside the
September 3, 20121 and March 13, 20132 Resolutions of the Court of Appeals
(CA), in C.A.-G.R. CR No. 31963, which denied his motion that he be entitled to
probation.
In the decision of the majority, the petition reversed its ruling in Colinares v.
People3 and denied the subject petition.
With due respect to the learned ponente of the case, I dissent.
The Antecedents:
Petitioner Mustapha was charged with the offense of Violation of Section 5(b),
Article III of Republic Act (R.A.) No. 7610, otherwise known as the Special
Protection of Children against Child Abuse, Exploitation and Discrimination Act,
filed before the Regional Trial Court, Branch 199, Las Piñas City, (RTC)
_______________
1 Penned by Associate Justice Myrna V. Garcia-Fernandez, with Associate
Justices Vicente S.E. Veloso and Stephen C. Cruz, concurring; Rollo, pp. 26-29.
2 Id., at p. 31.
3 678 Phil. 482; 662 SCRA 266 (2011).
292
292 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
docketed therein as Criminal Case No. 05-1098, for committing a lascivious
conduct upon a 16-year-old complainant.
To prove its accusation, the prosecution presented private complainant AAA,
Department of Social Welfare and Development Social Worker (DSWD) Arleen
Bibit, and PO1 Toledo I. Mauricio, Jr., as its witnesses. The defense, on the other
hand, presented Mustapha and Allan Dimakuta to substantiate its claim of his
innocence. Mustapha denied the accusation and claimed that AAA merely
concocted the charge against him just so that she could have a reason to leave their
house where she worked as a domestic helper and be reunited with her family in
the province.
P a g e 250 | 279
 On September 3, 2008, the RTC rendered its Decision, 4 finding Mustapha
guilty as charged, and meted out the penalty of ten (10) years of prisión mayor, as
minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion
temporal, as maximum, with the accessory penalty of perpetual absolute
disqualification. Further, Mustapha was ordered to pay a fine of P25,000.00; civil
indemnity of P25,000.00; and moral damages of P25,000.00.
Not satisfied, Mustapha appealed the RTC judgment of conviction before the
CA claiming that the trial court egregiously erred in declaring him guilty of
violating Section 5(b), Article III of R.A. No. 7610. He faulted the trial court for
giving undue faith and credence to the testimony of AAA, contending that it was
laced with inconsistencies and improbabilities, tainting the veracity of her charge.
He argued that even assuming that he indeed touched the breasts and vagina of
AAA, still there was no concrete prosecution evidence showing that the said
lascivious act was committed through force, duress, intimidation or violence and,
hence, his conviction under R.A. No. 7610 was erroneous. He added that he could
not be convicted of Acts of Lasciviousness under Article 336 of
_______________
4 Penned by Judge Joselito Vibandor; Rollo, pp. 33-43.
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Dimakuta vs. People
the Revised Penal Code (RPC) either as the prosecution failed to establish the
essential elements of the said crime.
In its Appellee’s Brief,5 the Office of the Solicitor General (OSG) averred that
the RTC was correct in lending weight and credence to the testimony of AAA and
that the alleged inconsistencies in her testimony pertained merely on minor details
and did not negate the commission of the sexual molestation. The OSG, however,
was of the view that Mustapha should have been convicted of Acts of
Lasciviousness only under Article 336 of the RPC and not for Violation of Section
5(b), Article III of R.A. No. 7610 because the prosecution failed to prove that the
lascivious conduct was committed through coercion or intimidation. 6
In its June 28, 2012 Decision,7 the CA agreed with the
OSG and modified the judgment of the RTC and convicted Mustapha for Acts of
Lasciviousness only under Article 336 of the RPC explaining that coercion or
intimidation, the second element of the crime of violation of Section 5(b), Article III
of R.A. No. 7610, was wanting in Criminal Case No. 05-1098. According to the CA,
the evidence on record revealed that AAA was asleep at the time the sexual abuse
happened and only awoke when she felt her breasts being mashed and her vagina
being touched. The CA noted that after being roused from sleep, AAA immediately
put on some clothes and rushed out of her room, leaving Mustapha behind, and
locked herself in the stockroom.
CRIMINAL LAW | PENALTIES
The CA added that there was no showing that Mustapha compelled AAA, or
cowed her into silence to bear his sexual assault. Neither was there evidence that
she had the time to manifest conscious lack of consent or resistance to Mustapha’s
_______________
5 Id., at pp. 77-1114.
6 Id., at pp. 102-107.
7 Penned by Associate Justice Myra V. Garcia-Fernandez, with Associate
Justices Vicente S.E. Veloso and Stephen C. Cruz, concurring; id., at pp. 117-130.
294
294 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
assault. It stressed that the lascivious acts imputed to him had taken place
while private complainant was in deep slumber or unconscious, under almost the
same factual circumstances as in the case of People v. Abello,8 where the accused
was found guilty beyond reasonable doubt of the crime of Acts of Lasciviousness,
defined and penalized under Article 336 of the RPC instead of the charge of
violation of Section 5(b), Article III of R.A. No. 7610. The CA justified its ruling that
Mustapha’s conviction under Article 336 of the RPC was proper for the reasons
that: 1) the recital of ultimate facts and circumstances in the Information
constituted acts of lasciviousness; and 2) the evidence adduced by the prosecution
established beyond reasonable doubt his guilt of the said crime. The dispositive
portion of the CA decision reads:
WHEREFORE, the Decision appealed from is MODIFIED. Accused-
appellant Mustapha Dimakuta y Maruhom alias “Boyet” is found GUILTY
of acts of lasciviousness, defined and penalized under ARTICLE 336 of the
REVISED PENAL CODE, as amended and he is sentenced to the
indeterminate penalty of SIX (6) MONTHS of arresto mayor, as minimum,
to FOUR (4) YEARS and TWO (2) MONTHS of prisión correccional, as
maximum. Accused-appellant is likewise ordered to pay the private
complainant TWENTY THOUSAND PESOS (P20,000.00) as civil
indemnity and THIRTY THOUSAND PESOS (P30,000.00) as moral
damages.
SO ORDERED.9
Instead of moving for reconsideration, Mustapha filed on July 23, 2012, a
manifestation with motion10 before the CA praying that he be allowed to apply for
probation under Presidential Decree (P.D.) No. 968 upon its remand to the trial
court for execution. He placed reliance on the Court’s
_______________
8 601 Phil. 373; 582 SCRA 378 (2009).
P a g e 251 | 279
 9 Rollo, pp. 129-130.
10 Id., at pp. 132-142. THE COURT OF APPEALS’ DENIAL OF THE PETITIONER’S RIGHT
TO APPLY FOR PROBATION [AS IT DID] NOT QUESTION THE
PROPRIETY OF THE PENALTY UPON APPEAL, IS CONTRARY TO THE
DECIDED CASE OF ARNEL COLINARES V. PEOPLE.13
295
VOL. 773, OCTOBER 20, 2015 295 The threshold issue that begs an answer from this Court is whether or not
Mustapha has the right to apply for probation under the new penalty imposed by
Dimakuta vs. People
the CA which is within the probationable limit.
ruling in Colinares where the accused was allowed to apply for probation under
Mustapha posits that he can still avail of the benefits of probation under P.D.
the reduced penalty imposed on appeal. Mustapha contended that he should not be
No. 968, as amended by P.D. No. 1990, despite having appealed the September 3,
prejudiced by the erroneous judgment of the RTC which convicted him with the
2008 RTC decision because the opportunity to apply for probation came into being
wrong crime and sentenced him with a penalty beyond the coverage of the
only upon his conviction by the CA of the crime of Acts of Lasciviousness and the
Probation Law. He submitted that the Probation Law must be liberally construed
imposition of a lesser penalty which fell within the probationable level.
in favor of the accused.
By way of Comment14 to the petition, the OSG counters that Mustapha’s right
In its first assailed Resolution, dated September 3, 2012, the CA denied due
to apply for probation was lost when he perfected his appeal from the RTC
course to Mustapha’s manifestation with motion, holding that the Colinares case
judgment of conviction. It argues that the perfection of an appeal is a
was not on all fours with the present case. The CA explained that in Colinares case,
relinquishment of the alternative remedy of availing the Probation Law because
the petitioner raised as sole issue the correctness of the penalty imposed and
appeal and probation are mutually exclusive remedies which rest on diametrically
claimed that the evidence at best warranted a conviction for a lesser offense of
opposed legal positions. The OSG submits that the Colinares case is not squarely
attempted homicide; while Mustapha never assailed the propriety of the penalty
applicable in the case at bench because Mustapha never admitted guilt and did not
meted out against him and, in fact, questioned the findings of facts and conclusions
limit the issue on the correctness of the penalty meted out by the trial court.
drawn by the RTC based on the evidence adduced by the prosecution. It held that
I am of the view that the petition is impressed with merit.
the ruling in Lagrosa v. People11 is more at point. In said case, it was held that the
_______________
petitioners therein were precluded from seeking probation after taking a
guiltlessness stance and put in issue the merits of their conviction on appeal. The
13 Id., at p. 14.
CA, thus, adjudged as follows:
14 Id., at pp. 169-182.
WHEREFORE, the Manifestation with Motion to Allow Accused-
Appellant to Apply for Probation under Presidential Decree No. 968 is
DENIED. 297
SO ORDERED.12
VOL. 773, OCTOBER 20, 2015 297
Mustapha moved for reconsideration, but his motion was denied in the second Dimakuta vs. People
assailed Resolution, dated March 13, 2013. Probation is not a right of an accused but a mere privilege, an act of grace and
Hence, this petition. clemency or immunity conferred by the State, which is granted to a deserving
_______________ defendant who thereby escapes the extreme rigors of the penalty imposed by law
for the offense of which he was convicted.15 In recent jurisprudence, it has been
11 453 Phil. 270; 405 SCRA 357 (2003). clarified that while the convicted offender has no right to such privilege,
12 Rollo, p. 29. nevertheless, he has the right to apply for that privilege,16 provided that he is not
disqualified from availing the benefits of probation.
To properly understand the current application of the Probation Law, a brief
review of its history is but appropriate. As originally promulgated on July 24, 1976,
296 P.D. No. 968 allowed the filing of an application for probation even if an appeal had
296 SUPREME COURT REPORTS ANNOTATED been perfected by the convicted offender. When the law was later amended by P.D.
No. 1257 on December 1, 1977, the filing of an application for probation pending
Dimakuta vs. People
appeal was still allowed and, in fact, fixed the period to the point just “before he
Ground
begins to serve his sentence.” With the subsequent amendment of Section 4 of P.D.
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No. 968 by P.D. No. 1990, however, the application for probation is no longer
allowed if the accused has perfected an appeal from the judgment of conviction.
Section 4 of the Probation Law now reads:
Sec. 4. Grant of Probation.—Subject to the provisions of this Decree,
the trial court may, after it shall have convicted and sentenced a defendant
and upon application by said defendant within the period for perfecting an
appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may
deem best; Provided, that no application for probation shall be
entertained or granted if the defendant has perfected an appeal
from the judgment of conviction.
_______________
15 Moreno v. Commission on Elections, 530 Phil. 279, 290; 498 SCRA 547, 560
(2006).
16 Colinares v. People, supra note 3 at p. 497.
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298 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with
the trial court. The filing of the application shall be deemed a waiver of the
right to appeal.
An order granting or denying probation shall not be appealable.
The reason underlying the amendment was amply articulated in the
preambulatory clauses of P.D. No. 1990, thus:
WHEREAS, it has been the sad experience that persons who are
convicted of offenses and who may be entitled to probation still appeal the
judgment of conviction even up to the Supreme Court, only to pursue their
application for probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution,
conviction and appeal entails too much time and effort, not to mention the
huge expenses of litigation, on the part of the State;
WHEREAS, the time, effort and expenses of the Government in
investigating and prosecuting accused persons from the lower courts up to
the Supreme Court, are oftentimes rendered nugatory when, after the
appellate Court finally affirms the judgment of conviction, the defendant
applies for and is granted probation.
xxxx
CRIMINAL LAW | PENALTIES
In Almero v. People,17 the Court stated that the Probation Law was amended
“precisely to put a stop to the practice of appealing from judgments of conviction —
even if the sentence is probationable — for the purpose of securing an acquittal and
applying for the probation only if the accused fails in his bid.” In Sable v.
People,18 the Court elucidated that the requirement that an accused must not have
appealed his
_______________
17 G.R. No. 188191, March 12, 2014, 718 SCRA 698.
18 602 Phil. 989, 997; 584 SCRA 619, 627 (2009).
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VOL. 773, OCTOBER 20, 2015 299
Dimakuta vs. People
conviction before he can avail of probation, outlaws the element of speculation
on the part of the accused — to wager on the result of his appeal — that when his
conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and
the service of his sentence inevitable, he now applies for probation as an “escape
hatch,” thus, rendering nugatory the appellate court’s affirmance of his conviction.
Resultantly, under Section 4 of P.D. No. 968 as amended, the accused is given
the choice of appealing his sentence or applying for probation. If he appeals,
he cannot later apply for probation. If he opts for probation, he cannot appeal.
Going back to the case at bench, I am of the considered view that Mustapha can
apply for probation. Mustapha, just like the petitioner in the Colinares case, did
not have a choice between appeal and probation when the trial court
convicted him of a wrong offense. The trial court’s erroneous conviction of
Mustapha for Violation of Section 5(b), Article III of R.A. No. 7610 and the
imposition of a prison term of ten (10) years of prisión mayor, as minimum, to
seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as
maximum, deprived him of the choice to pursue an application for probation
considering that the maximum probationable imprisonment under the Probation
Law was only up to six (6) years.
In the Colinares case, the petitioner was convicted by the trial court of
Frustrated Homicide and sentenced him to suffer imprisonment from two (2) years
and four (4) months of prisión correccional, as minimum, to six (6) years and one
(1) day of prisión mayor, as maximum, but later, on appeal, this Court found him
guilty only of Attempted Homicide, and sentenced him to suffer an indeterminate
penalty from four (4) months of arresto mayor, as minimum, to two (2) years and
four (4) months of prisión correccional, as maximum. Verily, because of the stiff
penalties imposed against both Mustapha and Arnel Colinares by the trial courts,
they had no way of
300
P a g e 253 | 279
300 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
obtaining relief except by appealing their respective judgments.
In the Colinares case, the Court resolved that it is but fair to allow the
petitioner the right to apply for probation under the reduced penalty upon remand
of the case to the RTC. I see no reason why the case of Mustapha should be treated
differently considering that his sentence was reduced by the CA to an
indeterminate penalty of six (6) months of arresto mayor, as minimum to four (4)
years and two (2) months of prisión correccional, as maximum. By appealing the
merits of the case, together with the conformity of the OSG, the CA found Mustapha
guilty only of the crime of Acts of Lasciviousness with a penalty well within the
probationable period.
It bears stressing that the evil of speculation and opportunism on the part of
the accused sought to be curbed by the amendment in P.D. No. 1990 was not
present in the case at bench inasmuch as the penalty imposed by the RTC against
Mustapha was not probationable at the outset. Besides, nowhere in the amendatory
decree does it state or even hint that in limiting the accused to the choice of either
appealing from the decision of the trial court or applying for probation, the purpose
is to deny him of the right to apply for probation in cases like the one at bench
where he became eligible for probation only because his sentence was reduced on
appeal. To repeat, the purpose of the amendment is simply to prevent speculation
or opportunism on the part of the accused who, although already eligible for
probation, does not at once apply for probation, but did so only after failing in his
appeal.19
The CA explained that in the Colinares case, the petitioner therein raised as
sole issue the correctness of the penalty imposed while the OSG contends that
the Colinares case is not squarely applicable to present case because Mustapha
_______________
19 Francisco v. Court of Appeals, 313 Phil. 241, 264; 243 SCRA 384, 396-397
(1995).
301
VOL. 773, OCTOBER 20, 2015 301
Dimakuta vs. People
never admitted guilt and did not limit the issue on appeal to the correctness of
the penalty meted out by the trial court.
These arguments are specious.
Firstly, in the Colinares case, the accused therein did not only question the
correctness of the penalty, but also the merits of the case by arguing that he should
be exonerated due to the presence of the justifying circumstance of self-defense.
The Court did not agree with his defense but nevertheless found him guilty of a
lesser offense of attempted homicide with a probationable penalty. Just like in this
CRIMINAL LAW | PENALTIES
case, Mustapha appealed the merits of the case by questioning the appreciation of
evidence of the trial court.
Secondly, it cannot be said with absolute certainty that the sole and exclusive
motivation of Mustapha for lodging the appeal was his desire to be acquitted. Proof
of this is that after Mustapha was found guilty by the CA of acts of lasciviousness
and sentenced to a lesser penalty which thereby qualified him for probation, he did
not appeal further although he could have done so. What he did, instead, was to
accept the new sentence and seek a declaration from the CA that he is entitled to
apply for probation upon remand of the case to the RTC for execution. This shows
that he is willing to accept the conviction of crime, albeit for a lower penalty.
Thirdly, regardless of whether an accused appealed the merits of the case or
simply the correctness of the penalty imposed, the Court should not distinguish
insofar as the application of the Probation Law is concerned. The Court cannot
expect Mustapha to forgo the remedy of appeal and admit guilt over a crime he did
not commit due to an erroneous appreciation of the merits of the case. He should
not accept the erroneous judgment of the RTC for, in truth, he only committed Acts
of Lasciviousness with a maximum penalty of four (4) years and two (2) months.
Mustapha should not be made to suffer through the forfeiture of the right to apply
for probation simply because the RTC had blundered. In the Colinares case, it was
written:
302
302 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
The Probation Law never intended to deny an accused his right to
probation through no fault of his. The underlying philosophy of probation is
one of liberality towards the accused. Such philosophy is not served by a
harsh and stringent interpretation of the statutory provisions. As Justice
Vicente V. Mendoza said in his dissent in Francisco, the Probation Law
must not be regarded as a mere privilege to be given to the accused only
where it clearly appears he comes within its letter; to do so would be to
disregard the teaching in many cases that the Probation Law should be
applied in favor of the accused not because it is a criminal law but to achieve
its beneficent purpose.
There are views that Mustapha should not be allowed to apply for probation
anchored on the following grounds:
1] the Colinares case should not be made to apply to this case because it is not
yet an established doctrine and the pronouncements therein were not supported by
the text of the Probation Law; and
2] even if the ratiocination in the Colinares case is sound, still, it finds no
application in the case at bench inasmuch as the CA erred in modifying the
judgment of the RTC.
P a g e 254 | 279
 I disagree.
Adherence to the Colinares case is dictated by this Court’s policy of securing
and maintaining certainty and stability of judicial decisions in accordance with the
legal maxim stare decisis et non quieta movere (or simply, stare decisis which
means “follow past precedents and do not disturb what has been settled”). The
principle, entrenched under Article 820 of the Civil Code, evokes the general rule
that, for the sake of
_______________
20 Article 8. Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines.
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VOL. 773, OCTOBER 20, 2015 303
Dimakuta vs. People
certainty, a conclusion reached in one case should be doctrinally applied to
those that follow if the facts are substantially the same, even though the parties
may be different.21 Otherwise stated, once a point of law has been established by
the Court, that point of law will, generally, be followed by the same court and by
all courts of lower rank in subsequent cases where the same legal issue is raised.
Stare decisis proceeds from the first principle of justice that, absent powerful
countervailing considerations, like cases ought to be decided alike. 22 Hence, where,
as in this case, the same question relating to the same event have been put forward
by parties similarly situated as in a previous case litigated and decided by a
competent court, the rule of stare decisis is a bar to any attempt to relitigate the
same issue.23 Significantly, the respondent has not shown any strong and
compelling reason to persuade the Court that the manner of disposition
in Colinares v. People pertaining to the matter of probation should not be observed
and adopted in the case at bench.
Anent the second ground, suffice it to state that the June 28, 2012 Decision of
the CA convicting Mustapha for Acts of Lasciviousness became final and executory
only upon the failure of either party to question the decision. On the other hand,
after Mustapha received a copy of the aforesaid decision on July 6, 2012, he did not
further appeal the same to this Court. Instead, he filed before the CA on July 23,
2012, a manifestation with motion to allow him to apply for probation upon remand
of the case to the trial court for execution. To review the correctness of the final and
executory June 28,
_______________
21 Belgica v. Ochoa, Jr., G.R. No. 208566, November 19, 2013, 710 SCRA 1,
101-102.
22 Ayala Corporation v. Rosa-Diana Realty and Development Corporation, 400
Phil. 511, 521; 346 SCRA 663, 671 (2000).
23 Chinese Young Men’s Christian Association of the Philippine Islands v.
Remington Steel Corporation, 573 Phil. 320, 337; 550 SCRA 180, 197-198 (2008).
CRIMINAL LAW | PENALTIES
304
304 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
2012 Decision of the CA at this point is no longer permissible in the light of the
constitutional interdict against double jeopardy.
Not surprisingly, the OSG did not question the decision anymore as it
conformed to its own recommendation that the petitioner should be found guilty of
Acts of Lasciviousness only.24
Let it be underscored that the primodial consideration of this Court in allowing
the petitioner in the Colinares case to apply for probation was one of fairness. Here,
considering that the sentence of the RTC against Mustapha was modified by the
CA to a probationable range upon recommendation of the OSG, and that he is not
one of those disqualified offenders under Section 9 of P.D. No. 968 as amended, he
should not be denied his right to apply for probation in the spirit of fairness. To
rule otherwise would send Mustapha straight to jail and, thus, robbing him of the
chance to undergo reformation and rehabilitation as a penitent offender, defeating
the avowed purpose and objective of the Probation Law.
IN VIEW OF ALL THE FOREGOING, I recommend that the petition
be GRANTED; that the assailed September 3, 2012 and March 13, 2013
Resolutions of the Court of Appeals (CA) in C.A.-G.R. CR No. 31963
be REVERSED and SET ASIDE; and that petitioner Mustapha
Dimakuta y Maruhom @ Boyet be declared as entitled to apply for probation within
fifteen (15) days from notice that the record of the case has been remanded for
execution to the Regional Trial Court of Las Piñas City, Branch 199, in Criminal
Case No. 05-1098.
_______________
24 Rollo, p. 102.
305
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Dimakuta vs. People
CONCURRING OPINION
LEONEN, J.:
Fiat justitia ruat caelum.1
The accused touched the breast and vagina of a 16-year-old minor.
The Court of Appeals failed to appreciate that this would not have been possible
without intimidation or coercion. It lowered the penalty from a minimum
imprisonment of ten (10) years2 to a minimum imprisonment of six (6) months. 3 If
the Decision of the Court of Appeals is upheld, he will not serve a single day in
P a g e 255 | 279
prison for his acts. This is not what the law requires. This is definitely not what it
intends.
Probation and appeal are mutually exclusive remedies. Probation is a mere
privilege granted only to offenders who are willing to be reformed and
rehabilitated. It cannot be availed of when an offender has already perfected his or
her appeal from the judgment of conviction.
Generally, after a finding of fact by a trial court of the guilt of an accused beyond
reasonable doubt, society is entitled to the expectation that he or she serve his or
her sentence. In this sense, probation is a mere privilege: an exception granted to
a general rule that is both reasonable and just.
I submit that Colinares v. People4 should not be made to apply to this case for
two reasons. First, Colinares has not yet
_______________
1 “Let justice be done though the heavens fall.”
2 Ponencia, p. 245. The Regional Trial Court sentenced petitioner to
imprisonment of ten (10) years prisión mayor as minimum to seventeen (17) years,
four (4) months and one (1) day reclusion temporal as maximum.
3 Ponencia, p. 246. The Court of Appeals lowered the penalty to imprisonment
of six (6) months arresto mayor as minimum to four (4) years and two (2)
months prisión correccional as maximum.
4 678 Phil. 482; 662 SCRA 266 (2011) [Per J. Abad, En Banc].
306
306 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
become established doctrine, and the dissents of the case offer a sound and
logical approach to the issue. Colinares read an outcome, which is not supported by
the text of law. Second, even assuming that the ratio in Colinares is good law, it
finds no application to this case since the Court of Appeals erred in modifying the
judgment of the trial court.
I imprisonment or a fine only. An application for probation shall be filed with
Probation was first established in this jurisdiction through Act No. 42215 dated
August 7, 1935. According to the provisions of the Act, those who have not been
convicted of any offense punishable by death or life imprisonment 6 may be placed
under probation after the sentence becomes final and before the offender begins the
service of sentence.7
_______________
5 An Act Establishing Probation for Persons, Eighteen Years of Age or Above,
Convicted of Certain Crimes by the Courts of the Philippine Islands; Providing
Probation Officers Therefor; and for Other Purposes.
6 Act No. 4221 (1935), Sec. 8 provides:
CRIMINAL LAW | PENALTIES
SECTION 8. This Act shall not apply to persons convicted of offenses
punishable by death or life imprisonment; to those convicted of homicide, treason,
conspiracy or proposal to commit treason; to those convicted of misprision of
treason, sedition or espionage; to those convicted of piracy, brigandage, arson, or
robbery in band; to those convicted of robbery with violence on persons when it is
found that they displayed a deadly weapon; to those convicted of corruption of
minors; to those who are habitual delinquents; to those who have been once on
probation; and to those already sentenced by final judgment at the time of the
approval of this Act.
7 Act No. 4221 (1935), Sec. 1 provides:
SECTION 1. Whenever any person eighteen years of age or more at the time
of committing a criminal offense or misdemeanor is convicted and sentenced by a
Court of First Instance or by the Supreme Court on appeal, for such offense or
misdemeanor, the proper Court of First Instance may after the sentence has
become final and before the defendant has begun the service thereof, suspend the
execution of said sentence and place the defendant on probation for
307
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Dimakuta vs. People
The current law on probation is Presidential Decree No. 968,8 which was signed
into law on July 24, 1976. An accused was originally allowed to apply for probation
before the trial court even pending appeal, as long as notice was given to the Court
of Appeals where the appeal was pending.9 According to Section 4 of the Decree:
SECTION 4. Grant of Probation.—Subject to the provisions of this
Decree, the court may, after it shall have convicted and sentenced a
defendant and upon application at any time of said defendant, suspend the
execution of said sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem best.
Probation may be granted whether the sentence imposes a term of
the trial court, with notice to the appellate court if an appeal has been taken
from the sentence of conviction. The filing of the application shall be deemed
a waiver of the right to appeal, or the automatic withdrawal of a pending
appeal.
An order granting or denying probation shall not be appealable.
(Emphasis supplied)
The Decree, however, declared that probation cannot be availed of by the
following offenders:
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P a g e 256 | 279
 such period as it may determine not less nor exceeding the minimum and
maximum periods prescribed in this Act. No person, however, shall be placed on
probation until an investigation and report by the probation officer shall have been
made to the court of the circumstances of his offense, his criminal record, if any,
and his social history and until the provincial fiscal shall have been given an
opportunity to be heard. The court shall enter in the minutes the reasons for its
action.
8 Establishing a Probation System, Appropriating Funds Therefor and for
Other Purposes.
9 Pres. Decree No. 968 (1976), Sec. 4.
308
308 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
SECTION 9. Disqualified Offenders.—The benefits of this Decree
shall not be extended to those:
(a) sentenced to serve a maximum term of imprisonment of more than
six years;
(b) convicted of subversion or any crime against the national security
or the public order;
(c) who have previously been convicted by final judgment of an offense
punished by imprisonment of not less than one month and one day and/or a
fine of not less than Two Hundred Pesos;
(d) who have been once on probation under the provisions of this
Decree; and
(e) who are already serving sentence at the time the substantive
provisions of this Decree became applicable pursuant to Section 33 hereof.10
Section 4 of the Decree was amended twice: first, by Presidential Decree No.
1257 on December 1, 1977, and again, by Presidential Decree No. 1990 on October
5, 1985.
The amendments of Presidential Decree No. 1257 increased the period when an
application for probation may be granted, thus:
Section 1. Section 4 of Presidential Decree No. 968, otherwise known
as the Probation Law of 1976, is hereby amended to read as follows:
“Sec. 4. Grant of Probation.—Subject to the provisions of this
Decree, the court may, after it shall have convicted and sentenced a
defendant but before he begins to serve his sentence and upon his
application, suspend the execu-
_______________
10 This section was amended by Batas Pambansa Blg. 76 dated June 13, 1980
to include offenders sentenced to imprisonment of six years and one day. This
amendment, however, was repealed by Presidential Decree No. 1990 in 1985, which
restored the original text of Section 9 in Presidential Decree No. 968.
CRIMINAL LAW | PENALTIES
309
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Dimakuta vs. People
tion of said sentence and place the defendant on probation for
such period and upon such terms and conditions as it may deem best.
The prosecuting officer concerned shall be notified by the court
of the filling [sic] of the application for probation and he may submit
his comment on such application within ten days from receipt of the
notification.
Probation may be granted whether the sentence impose a term
of imprisonment or a fine with subsidiary imprisonment in case of
insolvency. An application for probation shall be filed with trial
court, with notice to appellate court if an appeal has been taken from
the sentence of conviction. The filling [sic] of the application shall be
deemed a waiver of the right to appeal, or the automatic withdrawal
of a pending appeal. In the latter case[,] however, if the application is
filed on or after the date of the judgment of the appellate court, said
application shall be acted upon by the trial court on the basis of the
judgment of the appellate court.
An order granting or denying probation shall not be appealable.”
(Emphasis supplied)
In 1985, however, a substantial amendment was made to the Probation Law,
which categorically prohibited applications for probation if the appeal has been
perfected:
WHEREAS, it has been the sad experience that persons who are
convicted of offenses and who may be entitled to probation still appeal the
judgment of conviction even up to the Supreme Court, only to pursue their
application for probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution,
conviction and appeal entails too much time and effort, not to mention the
huge expenses of litigation, on the part of the State;
310
310 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
WHEREAS, the time, effort and expenses of the Government in
investigating and prosecuting accused persons from the lower courts up to
the Supreme Court, are oftentimes rendered nugatory when, after the
appellate Court finally affirms the judgment of conviction, the defendant
applies for and is granted probation;
WHEREAS, probation was not intended as an escape hatch and should
not be used to obstruct and delay the administration of justice, but should be
P a g e 257 | 279
 availed of at the first opportunity by offenders who are willing to be reformed
and rehabilitated;
WHEREAS, it becomes imperative to remedy the problems above
mentioned confronting our probation system;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution, do
hereby decree:
SECTION 1. Section 4 of Presidential Decree No. 968 is hereby
amended to read as follows:
“SEC. 4. Grant of Probation.—Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said defendant
within the period for perfecting an appeal, suspend the execution of
the sentence and place the defendant on probation for such period
and upon such terms and conditions as it may deem best; Provided,
That no application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment of
conviction.
“Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with
the trial court. The filing of the application shall be deemed a waiver of the
right to appeal.
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Dimakuta vs. People
“An order granting or denying probation shall not be appealable.”11 (Emphasis
supplied)
Thus, the present law makes an appeal and an application for probation
mutually exclusive remedies. An accused who has been sentenced to a penalty of
less than six (6) years of imprisonment may only apply for probation if he or she
has not yet perfected his or her appeal from the judgment of conviction. There are
no exceptions to the rule in the text of the law. The intent to make the choices
exclusive from each other is seen in the context of the history of the amendments to
this law.
The amendment to Section 4 of the Probation Law has also been the subject of
several cases before this court. Two cases, in particular, established the following
principles:
1. The Probation Law is not a penal statute that may be interpreted liberally
in favor of the accused; and
2. Section 4 of the Probation Law clearly mandates that no application for
probation shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction.
CRIMINAL LAW | PENALTIES
The first of these cases applied Section 4 as it is stated in the law, effectively
ruling that the law does not admit exceptions. In Llamado v. Court of
Appeals,12 Ricardo A. Llamado (Llamado) was convicted by the trial court of
violation of Batas Pambansa Bilang 22 and sentenced to imprisonment of one (1)
year of prisión correccional.13
After the decision had been read to him, Llamado orally manifested before the
trial court that he was taking an appeal. The trial court forwarded the records of
the case to the
_______________
11 Pres. Decree No. 1990 (1985).
12 256 Phil. 328; 174 SCRA 566 (1989) [Per J. Feliciano, Third Division].
13 Id., at p. 332; pp. 569-570.
312
312 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
Court of Appeals on the same day. Llamado received notices from the Court of
Appeals to file his Appellant’s Brief, to which he secured several extensions. 14
While his Appellant’s Brief was being finalized by his counsel on record,
Llamado sought advice from another lawyer.15 Heeding the advice of his new
counsel, he filed before the trial court a Petition for Probation under the Probation
Law.16 The Petition was not accepted by the trial court as “the records of [his] case
had already been forwarded to the Court of Appeals.”17 Llamado then filed a
Manifestation and Petition for Probation before the Court of Appeals, asking it to
grant his Petition or, in the alternative, to remand the Petition to the trial court
along with the records of the case.18 While the Petition was pending before the
Court of Appeals, he filed a Manifestation and Motion formally withdrawing his
appeal “conditioned . . . on the approval of his Petition for Probation.”19
The Court of Appeals denied the Petition, which prompted Llamado to file a
Petition for Review before this court, on the sole issue of whether his application
for probation was filed after he had already perfected his appeal.20
This court, however, affirmed the Court of Appeals and ruled that Llamado
already perfected his appeal when he orally manifested in open court his intention
to appeal.21 As such, he cannot be allowed to apply for probation by virtue of Section
4 of Presidential Decree No. 968, as amended by Presidential Decree No.
1990.22 This court was also hesitant to
_______________
14 Id.
15 Id.
16 Id., at pp. 332-333; p. 570.
17 Id., at p. 333; p. 571.
18 Id.
19 Id.
P a g e 258 | 279
 20 Id., at pp. 333-334; p. 571.
21 Id., at p. 337; p. 575.
22 Id., at pp. 337-339; p. 571.
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Dimakuta vs. People
liberally interpret Section 4 of Presidential Decree No. 968 since the Decree
was not a penal statute.23 The court stated:
Turning to petitioner’s invocation of “liberal interpretation” of penal
statutes, we note at the outset that the Probation Law is not a penal statute.
We, however, understand petitioner’s argument to be really that any
statutory language that appears to favor the accused in a criminal case
should be given a “liberal interpretation.” Courts, however, have no
authority to invoke “liberal interpretation” or “the spirit of the law” where the
words of the statute themselves, and as illuminated by the history of that
statute, leave no room for doubt or interpretation. We do not believe that “the
spirit of law” may legitimately be invoked to set at naught words which have
a clear and definite meaning imparted to them by our procedural law. The
“true legislative intent” must obviously be given effect by judges and all
others who are charged with the application and implementation of a
statute. It is absolutely essential to bear in mind, however, that the spirit
of the law and the intent that is to be given effect are to be derived from the
words actually used by the lawmaker, and not from some external, mystical
or metajuridical source independent of and transcending the words of the
legislature.
The Court is not here to be understood as giving a “strict” interpretation”
rather than a “liberal” one to Section 4 of the Probation Law of 1976 as
amended by P.D. No. 1990. “Strict” and “liberal” are adjectives which too
frequently impede a disciplined and principled search for the meaning which
the lawmaking authority projected when it promulgated the language which
we must apply. That meaning is clearly visible in the text of Section 4, as
plain and unmistakable as the nose on a man’s face. The Court is simply
reading Section 4 as it is in fact written. There is no need for the involved
process of construction that petitioner invites us to engage in, a process made
necessary only because petitioner rejects the conclusion or
_______________
23 Id., at p. 339; p. 577.
314
CRIMINAL LAW | PENALTIES
314 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
meaning which shines through the words of the statute. The first duty of
a judge is to take and apply a statute as he finds it, not as he would like it
to be. Otherwise, as this Court in Yangco v. Court of First Instance of
Manila warned, confusion and uncertainty in application will surely follow,
making, we might add, stability and continuity in the law much more
difficult to achieve[.]24 (Emphasis supplied)
The issue of whether an application for probation is allowed after the perfection
of an appeal was again taken up by this court in Francisco v. Court of Appeals.25
In Francisco, Pablo C. Francisco (Francisco) was convicted by the Metropolitan
Trial Court of four (4) counts of grave oral defamation and sentenced to
imprisonment of “one (1) year and one (1) day to one (1) year and eight (8) months
of prisión correccional ‘in each crime committed on each date of each case[.]’”26 On
appeal before the Regional Trial Court, the trial court affirmed his conviction but
appreciated a mitigating circumstance in his favor. His penalty was reduced to a
straight penalty of eight (8) months of imprisonment. This Decision became final
and executory upon his failure to file an appeal. Before the Decision could be
executed, however, he applied for probation before the Metropolitan Trial Court.
His application was denied, as was his subsequent Petition for Certiorari before the
Court of Appeals.27
Francisco then brought a Petition before this court, arguing that “he [had] not
yet lost his right to avail [himself] of probation[.]”28 He argued that the judgment
of the Metropolitan Trial Court was such that he could not be qualified for proba-
_______________
24 Id., at pp. 339-340; pp. 577-578.
25 313 Phil. 241; 243 SCRA 384 (1995) [Per J. Bellosillo, En Banc].
26 Id., at p. 251; p. 387.
27 Id., at p. 252; p. 388.
28 Id., at p. 254; p. 389.
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Dimakuta vs. People
tion, which was precisely the reason for his appeal, so that he could avail
himself of the benefits of probation.29
This court, speaking through Justice Bellosillo, denied his Petition and ruled
that Francisco was no longer eligible for probation.30 This court stated that:
Probation is a mere privilege, not a right. Its benefits cannot extend to
those not expressly included. Probation is not a right of an accused, but
P a g e 259 | 279
 rather an act of grace and clemency or immunity conferred by the state which
may be granted by the court to a seemingly deserving defendant who thereby
escapes the extreme rigors of the penalty imposed by law for the offense of
which he stands convicted. It is a special prerogative granted by law to a
person or group of persons not enjoyed by others or by all. Accordingly, the
grant of probation rests solely upon the discretion of the court which is to be
exercised primarily for the benefit of organized society, and only incidentally
for the benefit of the accused. The Probation Law should not therefore be
permitted to divest the state or its government of any of the latter’s
prerogatives, rights or remedies, unless the intention of the legislature to this
end is clearly expressed, and no person should benefit from the terms of the
law who is not clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which clearly
mandates that “no application for probation shall be entertained or granted
if the defendant has perfected the appeal from the judgment of conviction,”
nor Llamado v. Court of Appeals which interprets the quoted provision,
offers any ambiguity or qualification. As such, the application of the law
should not be subjected to any to suit the case of petitioner. While the
proposition that an appeal should not bar the accused from applying for
probation if the appeal is solely to reduce the penalty to within the
probationable limit may be equitable, we are not yet prepared to accept this
interpre-
_______________
29 Id.
30 Id.
316
316 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
tation under existing law and jurisprudence.31 (Emphasis supplied)
Moreover, this court ruled that the penalties imposed by the Metropolitan Trial
Court were already probationable since “the sum of the multiple prison terms
imposed against an applicant should not be determinative of his [or her] eligibility
for, nay his [or her] disqualification from, probation.”32 It also pointed out that
Francisco appealed his conviction before the Regional Trial Court not to reduce his
penalty to make him eligible for probation but “to assert his innocence.”33
Justice V. V. Mendoza, however, took exception to the majority view and voted
to reverse the judgment of the Court of Appeals.34 In his Dissenting Opinion, he
stated that:
[I]f under the sentence given to him an accused is not qualified for
probation, as when the penalty imposed on him by the court singly or in their
CRIMINAL LAW | PENALTIES
totality exceeds six (6) years but on appeal the sentence is modified so that he
becomes qualified, I believe that the accused should not be denied the benefit
of probation.
Before its amendment by P.D. No. 1990, the law allowed — even
encouraged — speculation on the outcome of appeals by permitting the
accused to apply for probation after he had appealed and failed to obtain an
acquittal. It was to change this that Sec. 4 was amended by
_______________
31 Id., at pp. 254-255; pp. 389-390, citing Baclayon v. Mutia, 214 Phil. 126, 131;
129 SCRA 148, 153-154 (1984) [Per J. Teehankee, First Division]; Amandy v.
People, 244 Phil. 457, 465; 161 SCRA 436, 443 (1988) [Per J. Gutierrez, Jr., Third
Division], 34 Words and Phrases 111, Bala v. Martinez, 260 Phil. 488, 498-499; 181
SCRA 459, 465 (1990) [Per J. Sarmiento, Second Division], and Llamado v. Court
of Appeals, supra note 12 at pp. 334-337; p. 573.
32 Id., at p. 258; p. 392.
33 Id., at p. 262; p. 396.
34 J. Mendoza, Dissenting Opinion in Francisco v. Court of
Appeals, supra note 25 at p. 267; p. 401.
317
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Dimakuta vs. People
P.D. No. 1990 by expressly providing that “no application for probation
shall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction.” For an accused, despite the fact that he is
eligible for probation, may be tempted to appeal in the hope of obtaining an
acquittal if he knows he can any way apply for probation in the event his
conviction is affirmed.
There is, however, nothing in the amendatory Decree to suggest that in
limiting the accused to the choice of either appealing from the decision of the
trial court or applying for probation, the purpose is to deny him the right to
probation in cases like the one at bar where he becomes eligible for probation
only because on appeal his sentence is reduced. The purpose of the
amendment, it bears repeating, is simply to prevent speculation or
opportunism on the part of an accused who, although eligible for probation,
does not at once apply for probation, doing so only after failing in his
appeal.35 (Emphasis supplied, citations omitted)
Justice V. V. Mendoza also submitted that the original sentence imposed
on Francisco should be taken in its totality to determine whether he was qualified
for probation.36 In his opinion, the policy of the law treats “multiple sentences
imposed in cases which are jointly tried and decided37 as only one sentence.
Justice Vitug also offered a Separate Opinion, in that he agreed with Justice V.
V. Mendoza that an accused originally not qualified for probation must not be
P a g e 260 | 279
denied the benefit of probation if on appeal, the sentence was reduced within the
probationable period.38 He, however, concurred with the ma-
_______________ 319
VOL. 773, OCTOBER 20, 2015 319
35 Id., at pp. 268-272; p. 404.
36 Id., at pp. 275-276; p. 407. Dimakuta vs. People
37 Id., at p. 276; p. 407. This court eventually ruled that Colinares was only guilty of attempted
38 J. Vitug, Separate Opinion in Francisco v. Court of Appeals, supra note 25 homicide which was punishable by imprisonment of four (4) months of arresto
at pp. 277-278; p. 392. mayor as minimum and two (2) years and four (4) months of prisión correccional as
maximum.44 This court also found Colinares eligible for probation despite having
appealed his conviction.45 The Decision, penned by Justice Abad, stated that the
accused should not be denied the right of probation if it was through the fault of
318 the trial court that he did not have a chance to apply for probation:
318 SUPREME COURT REPORTS ANNOTATED
. . . Arnel did not appeal from a judgment that would have allowed him
Dimakuta vs. People to apply for probation. He did not have a choice between appeal and
jority that “the number of offenses is immaterial as long as all the penalties probation. He was not in a position to say, “By taking this appeal, I choose
imposed, taken separately, are within the probationable period.”39 not to apply for probation.” The stiff penalty that the trial court imposed on
The exception suggested by Justice V. V. Mendoza, i.e., that the accused should him denied him that choice. Thus, a ruling that would allow Arnel to now
be allowed to apply for probation if an originally unprobationable offense is reduced seek probation under this Court’s greatly diminished penalty will not dilute
to a probationable one on appeal, would ultimately become this court’s ratio the sound ruling in Francisco. It remains that those who will appeal from
in Colinares. judgments of conviction, when they have the option to try for probation,
With all due respect, Colinares does not apply to this case. forfeit their right to apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of correctness of the
II penalty imposed on him. He claimed that the evidence at best warranted his
conviction only for attempted, not frustrated, homicide, which crime called
In Colinares, the accused, Arnel Colinares (Colinares), was found guilty by the for a probationable penalty. In a way, therefore, Arnel sought from the
Regional Trial Court of frustrated homicide. He was sentenced to an indeterminate beginning to bring down the penalty to the level where the law would allow
penalty of two (2) years and four (4) months of prisión correccional as minimum to him to apply for probation.
six (6) years and one (1) day of prisión mayor as maximum.40 In a real sense, the Court’s finding that Arnel was guilty, not of
Colinares appealed before the Court of Appeals invoking self-defense. He also frustrated homicide, but only of attempted homicide, is an original
alternatively sought conviction for the lesser crime of attempted homicide. The conviction that for the first time imposes on him a probationable penalty.
Court of Appeals denied his appeal which prompted him to file a Petition for Review Had the RTC done him right from the start, it would have found him
before this court.41 _______________
During the pendency of the case, this court required Colinares and the Office of
the Solicitor General to submit their respective positions on whether, assuming 44 Id., at p. 501; p. 273.
that Colinares was only guilty of the lesser crime of attempted homicide, “he could 45 Id.
still apply for probation upon remand of [this] case to the trial court.” 42 Colinares
argued that he was eligible while the Office of the Solicitor General argued for his
ineligibility.43
_______________ 320
320 SUPREME COURT REPORTS ANNOTATED
39 Id., at p. 278; p. 392.
40 Colinares v. People, supra note 4 at p. 491; p. 273. Dimakuta vs. People
41 Id. guilty of the correct offense and imposed on him the right penalty of two
42 Id., at p. 492; p. 273. years and four months maximum. This would have afforded Arnel the right
43 Id. to apply for probation.

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 The Probation Law never intended to deny an accused his right to
probation through no fault of his. The underlying philosophy of probation is
one of liberality towards the accused. Such philosophy is not served by a
harsh and stringent interpretation of the statutory provisions. As Justice
Vicente V. Mendoza said in his dissent in Francisco, the Probation Law
must not be regarded as a mere privilege to be given to the accused only
where it clearly appears he comes within its letter; to do so would be to
disregard the teaching in many cases that the Probation Law should be
applied in favor of the accused not because it is a criminal law but to achieve
its beneficent purpose.46 (Emphasis supplied)
This Decision by the court was contentious in the least, with this court’s En
Banc voting 9-647 in favor of the ponencia and with Justice Peralta and Justice
Villarama offering their Separate Opinions.
_______________
46 Id., at pp. 499-500; pp. 280-281, citing Yusi v. Morales, 206 Phil. 734, 740;
121 SCRA 853, 858 (1983) [Per J. Gutierrez, Jr., First Division] and J. Mendoza,
Dissenting Opinion in Francisco v. Court of Appeals, supra note 25 at p. 273; p. 405.
47 Former Chief Justice Renato C. Corona and Associate Justices Antonio T.
Carpio, Presbitero J. Velasco, Jr., Teresita J. Leonardo-De Castro, Mariano C. Del
Castillo, Jose P. Perez, Jose C. Mendoza, and Bienvenido L. Reyes, concurred in
the ponencia. Associate Justices Diosdado M. Peralta and Martin S. Villarama, Jr.,
dissented. Associate Justices Arturo D. Brion, Lucas P. Bersamin, Ma. Lourdes P.
A. Sereno (now Chief Justice), and Estela M. Perlas-Bernabe joined in the dissents.
321
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Dimakuta vs. People
With all due respect, Justice Villarama, Jr. correctly stated in Colinares that
an application of liberality in the interpretation of Section 4 is “misplaced.” 48
It is a settled principle of statutory construction that only penal statutes are
construed liberally in favor of the accused.49 It is also equally settled that the
Probation Law is not a penal statute.50 The provisions of the law, including Section
4, should be interpreted as stated, which is that once an appeal has been perfected
by the accused, he or she is not anymore entitled to the benefits of probation.
The Probation Law intends to benefit only penitent offenders, or those who
admit to their offense and are willing to undergo rehabilitation. According to
Section 2 of the Probation Law:
Section 2. Purpose.—This Decree shall be interpreted so as to:
(a) promote the correction and rehabilitation of an offender by
providing him with individualized treatment;
(b) provide an opportunity for the reformation of a penitent offender
which might be less probable if he were to serve a prison sentence; and
(c) prevent the commission of offenses.
CRIMINAL LAW | PENALTIES
Moreover, the law was amended precisely to prohibit those offenders from
taking advantage of the benefits of the Probation Law when their appeals for
innocence are rendered fu-
_______________
48 J. Villarama, Jr., Concurring and Dissenting Opinion in Colinares v.
People, supra note 4 at p. 512; p. 284.
49 See People v. Ladjaalam, 395 Phil. 1, 35; 340 SCRA 617, 649 (2000)
[Per J. Panganiban, Third Division], citing People v. Atop, 349 Phil. 825, 839; 286
SCRA 157, 170 (1998) [Per J. Panganiban, En Banc] and People v. Deleverio, 352
Phil. 382, 404; 289 SCRA 547, 566 (1998) [Per J. Vitug, En Banc].
50 See Llamado v. Court of Appeals, supra note 12 at p. 339; p. 577.
322
322 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
tile. The first Whereas clause of Presidential Decree No. 1990 states:
WHEREAS, it has been the sad experience that persons who are
convicted of offenses and who may be entitled to probation still appeal the
judgment of conviction even up to the Supreme Court, only to pursue their
application for probation when their appeal is eventually dismissed.
It is thus abhorrent to the intention of the law if those who have appealed their
convictions, i.e., those who asked the court to review their convictions in the hope
of securing an acquittal, are still allowed to apply for probation.
In these situations, the privilege of probation becomes an “escape hatch”51 for
those whose appeals were found unmeritorious. In Sable v. People, et al.:52
The law expressly requires that an accused must not have appealed his
conviction before he can avail himself of probation. This outlaws the element
of speculation on the part of the accused — to wager on the result of his
appeal — that when his conviction is finally affirmed on appeal, the moment
of truth well nigh at hand and the service of his sentence inevitable, he now
applies for probation as an “escape hatch,” thus rendering nugatory the
appellate court’s affirmance of his conviction. Consequently, probation
should be availed of at the first opportunity by convicts who are willing to be
reformed and rehabilitated; who manifest spontaneity, contrition and
remorse.
This was the reason why the Probation Law was amended, precisely to
put a stop to the practice of appealing from judgments of conviction even if
the sentence is probationable, for the purpose of securing an acquittal
_______________
51 Sable v. People, 602 Phil. 989, 997; 584 SCRA 619, 627 (2009) [Per J. Chico-
Nazario, Third Division].
52 Id.
P a g e 262 | 279

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Dimakuta vs. People
and applying for the probation only if the accused fails in his
bid.53 (Emphasis supplied)
Similarly, Justice Villarama stated in his Separate Opinion in Colinares that:
It must be stressed that in foreclosing the right to appeal his conviction
once the accused files an application for probation, the State proceeds from
the reasonable assumption that the accused’s submission to rehabilitation
and reform is indicative of remorse. And in prohibiting the trial court from
entertaining an application for probation if the accused has perfected his
appeal, the State ensures that the accused takes seriously the privilege or
clemency extended to him, that at the very least he disavows criminal
tendencies. Consequently, this Court’s grant of relief to herein accused whose
sentence was reduced by this Court to within the probationable limit, with a
declaration that accused may now apply for probation, would diminish the
seriousness of that privilege because in questioning his conviction accused
never admitted his guilt. It is of no moment that the trial court’s conviction
of petitioner for frustrated homicide is now corrected by this Court to only
attempted homicide. Petitioner’s physical assault on the victim with intent
to kill is unlawful or criminal regardless of whether the stage of commission
was frustrated or attempted only. Allowing the petitioner the right to apply
for probation under the reduced penalty glosses over the fact that accused’s
availment of appeal with such expectation amounts to the same thing:
speculation and opportunism on the part of the accused in violation of the
rule that appeal and probation are mutually exclusive
remedies.54 (Emphasis supplied)
_______________
53 Id., at p. 997; p. 627, citing Francisco v. Court of Appeals, supra note 25 at
p. 250; p. 386 and People v. Evangelista, 324 Phil. 80, 85-86; 253 SCRA 714, 719
(1996) [Per J. Mendoza, Second Division].
54 J. Villarama, Jr., Concurring and Dissenting Opinion in Colinares v.
People, supra note 4 at pp. 511-512; pp. 292-293.
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324 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
The underlying theory, therefore, of the amendment to Section 4 is that the
grant of probation to an accused whose sentence was reduced must proceed from
CRIMINAL LAW | PENALTIES
an accused’s remorse and willingness to undergo rehabilitation, which is
antithetical to the filing of an appeal to seek the reversal of his or her conviction.
A more lenient approach was offered by Justice Peralta in Colinares. He was
more open to finding exceptions to the rule and was of the opinion that what Section
4 of the Probation Law prohibited are only appeals from the judgment of
conviction.55 He opined that probation, even after one’s filing of the notice of appeal,
should be allowed in the following instances:
1. When the appeal is merely intended for the correction of the penalty
imposed by the lower court, which when corrected would entitle the accused
to apply for probation; and
2. When the appeal is merely intended to review the crime for which
the accused was convicted and that the accused should only be liable to the
lesser offense which is necessarily included in the crime for which he was
originally convicted and the proper penalty imposable is within the
probationable period.56 (Emphasis in the original)
Justice Peralta stated that in these instances, the appeal is intended to
question only the propriety of the penalty imposed, rather than review the merits
of the case.57 He believed, however, that probation should not be granted in the
following instances:
1. When the accused is convicted by the trial court of a crime where the
penalty imposed is within the proba-
_______________
55 J. Peralta, Dissenting and Concurring Opinion in Colinares v. People, id.,
at p. 506; p. 281.
56 Id., at p. 507; p. 288.
57 Id., at p. 508; p. 289.
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Dimakuta vs. People
tionable period or a fine, and the accused files a notice of appeal; and
2. When the accused files a notice of appeal which puts the merits of
his conviction in issue, even if there is an alternative prayer for the
correction of the penalty imposed by the trial court or for a conviction to a
lesser crime, which is necessarily included in the crime in which he was
convicted where the penalty is within the probationable period.58 (Emphasis
and underscoring in the original)
P a g e 263 | 279
 This case is one of the instances mentioned by Justice Peralta wherein an
application of Colinares would violate the spirit and intent of the law.
The facts state that petitioner appealed his conviction before the Court of
Appeals on the basis that the trial court erred in giving credence to the victim’s
testimony as it was laced with inconsistencies and improbabilities. He argued that
even if he did commit lascivious conduct against the victim, he still should not be
charged with violation of Article 336 of the Revised Penal Code since the
prosecution failed to establish the essential elements of the crime. This is
tantamount to an assertion of his innocence.59
For him to still be eligible for probation, his appeal should have argued that the
trial court erred in finding him guilty of violation of Republic Act No. 7610 since
his offense was merely acts of lasciviousness.
The first appeal determines whether he comes under the exception.
Petitioner’s appeal before the Court of Appeals was made for the purpose of
securing an acquittal; it was not for the purpose of lowering his penalty to one
within the probationable period. To allow him to apply for probation would be to
_______________
58 Id., at p. 509; p. 290.
59 Ponencia, p. 260.
326
326 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
disregard the intent of the law: that appeal and probation are mutually
exclusive remedies.
III
Even assuming that the ratio in Colinares is sound, it finds no application in
this case simply because the Court of Appeals erroneously modified the offense.
Petitioner had been convicted by the trial court of violation of Article III,
Section 5(b) of Republic Act No. 7610 for allegedly molesting a 16-year-old girl. The
provision states:
Section 5. Child Prostitution and Other Sexual Abuse.—Children,
whether male or female, who for money, profit, or any other consideration
or due to the coercion or influence of any adult, syndicate or group, indulge
in sexual intercourse or lascivious conduct, are deemed to be children
exploited in prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion
perpetua shall be imposed upon the following:
....
(b) Those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subject to other sexual
abuse; Provided, That when the victim is under twelve (12) years of age, the
CRIMINAL LAW | PENALTIES
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for
rape or lascivious conduct, as the case may be; Provided, That the penalty
for lascivious conduct when the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period[.]
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Dimakuta vs. People
In Garingarao v. People,60 the elements of this offense are as follows:
1. The accused commits the act of sexual intercourse or lascivious
conduct;
2. The said act is performed with a child exploited in prostitution or
subjected to other sexual abuse; and
3. The child, whether male or female, is below 18 years of age.61
Lascivious conduct is defined as:
[T]he intentional touching, either directly or through clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction
of any object into the genitalia, anus or mouth, of any person, whether of
the same or opposite sex, with the intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic area of a
person.62
Here, petitioner is accused of touching the breast and vagina of a 16-year-old
girl.63 On appeal, however, the Court of Appeals modified the offense, finding that
the prosecution failed to prove that the lascivious conduct was done with coercion
or intimidation.64 It found petitioner to be guilty only
_______________
60 669 Phil. 512; 654 SCRA 243 (2011) [Per J. Carpio, Second Division].
61 Id., at p. 523; pp. 253-254, citing Olivarez v. Court of Appeals, 503 Phil. 421,
431; 465 SCRA 465, 473 (2005) [Per J. Ynares-Santiago, First Division].
62 Id., citing Olivarez v. Court of Appeals, id., at pp. 431-432; p. 473
[Per J. Ynares-Santiago, First Division], citing in turn Implementing Rules and
Regulations of Rep. Act No. 7610 (1992), Art. XIII, Sec. 32.
63 Ponencia, p. 245.
64 Id.
P a g e 264 | 279
 328
328 SUPREME COURT REPORTS ANNOTATED
Dimakuta vs. People
of acts of lasciviousness under Article 336 of the Revised Penal Code. 65 The
provision states:
ARTICLE 336. Acts of Lasciviousness.—Any person who shall commit any
act of lasciviousness upon other persons of either sex, under any of the
circumstances mentioned in the preceding article, shall be punished by prisión
correccional.
The Court of Appeals, however, erred in modifying the offense. According
to Navarrete v. People,66 the elements of Article 336 of the Revised Penal Code are:
(1) The offender commits any act of lasciviousness or lewdness;
(2) It is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived of reason or otherwise
unconscious; or
c. When the offended party is under 12 years of age; and
(3) The offended party is another person of either sex.67 (Emphasis supplied)
In the first place, it is illogical for the Court of Appeals to have found the offense
committed with force or intimidation and, at the same time, without coercion or
intimidation. Second, the fact that the victim in this case was a minor who was
molested by an adult is enough to prove that the victim’s free will was subdued in
view of her minority and immaturity. The
_______________
65 Id., at p. 246.
66 542 Phil. 496; 513 SCRA 509 (2007) [Per J. Corona, First Division].
67 Id., at p. 506; p. 517, citing People v. Bon, 444 Phil. 571, 583-584; 396 SCRA
506, 511 (2003) [Per J. Ynares-Santiago, En Banc].
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VOL. 773, OCTOBER 20, 2015 329
Dimakuta vs. People
moral ascendancy of the adult offender was enough to intimidate the minor
victim. In Garingarao:
The Court has ruled that a child is deemed subject to other sexual abuse when
the child is the victim of lascivious conduct under the coercion or influence of any
adult. In lascivious conduct under the coercion or influence of any adult, there must
CRIMINAL LAW | PENALTIES
be some form of compulsion equivalent to intimidation which subdues the free
exercise of the offended party’s free will.68 (Emphasis supplied)
Thus, petitioner was correctly found by the trial court guilty of violation of
Article III, Section 5(b) of Republic Act No. 7610. Since this offense is punishable
by reclusion temporal or an imprisonment of more than six (6) years, petitioner is
not eligible for probation.
Accordingly, I concur with the ponencia.
Petitioner denied the benefit of Probation Law.
Notes.—Section 11 of the Probation Law provides that the commission of
another offense shall render the probation order ineffective. (Suyan vs. People, 729
SCRA 1 [2014])
As probation is a mere discretionary grant, petitioner was bound to observe full
obedience to the terms and conditions pertaining to the probation order or run the
risk of revocation of this privilege. (Id.)
——o0o——
VOL. 387, AUGUST 21, 2002 485
Poso vs. Mijares
A.M. No. RTJ-02-1693. August 21, 2002.*
(Formerly OCA IPI 01-1170-RTJ)
OSCAR M. POSO, complainant, vs. JUDGE JOSE H. MIJARES, RTC-Br.
21, Laoang, Northern Samar and FLOR SERIO, OIC Clerk of Court,
Office of the Clerk of Court, respondents.
Courts; Judges; Administrative Complaints; Clearly, public interest in an
adept and honest judiciary dictates that notice of future harsher penalties should
not be followed by another forewarning of the same kind, ad infinitum, but by
discipline through appropriate penalties.—We find the investigation and report of
Justice Cruz to be well-taken, but the penalty he recommends appears to be
disproportionate to the gravity of the offenses. As has been painstakingly observed,
respondent Judge Mijares had been sternly warned in Dadap-Malinao v.
Mijares that repetition of his mistakes, more so aggravations thereof, would be
dealt with more severely. Apparently the warning did not work and hence we see
no reason in employing it again for purposes of this disciplinary case. Clearly,
public interest in an adept and honest judiciary dictates that notice of future
harsher penalties should not be followed by another forewarning of the same
kind, ad infinitum, but by discipline through appropriate penalties. This
understanding should leave no doubt that, unless completely ab-
_______________
*EN BANC.
486
486 SUPREME COURT REPORTS ANNOTATED
P a g e 265 | 279
 Poso vs. Mijares
solved of the charges, respondent Judge faces a grimmer sentence than the
four (4)-month suspension and warning recommended by Justice Cruz.
Same; Same; Judgments; The fact that complainant received a signed copy of
a court’s Resolution in the ordinary course of court proceedings only shows that the
same was the official and final determination of the pending motion for reduction
of penalty and that, quite obviously, a judge, in offering another as the supposedly
final version of the same Resolution, is vainly attempting to justify the subsequent
erroneous grant of probation to the same accused.—We are not convinced that the
two (2) copies of the 10 January 1996 Resolution penned by respondent Judge
consist of the draft and the final versions thereof. The fact that complainant
received a signed copy of the Resolution, Exh. “D,” in the ordinary course of court
proceedings only shows that Exh. “D” was the official and final determination of
the motion for reduction of penalty sought by the accused in Crim. Case No. 2477.
Quite obviously, in offering Exh. “6” as the supposedly final version of
the Resolution dated 10 January 1996, respondent Judge is vainly attempting to
justify the subsequent erroneous grant of probation to the same accused since the
penalty imposed under Exh. “D” absolutely disqualifies him from probation.
Exhibit “6” is clearly an afterthought meant by Judge Mijares to deceive this Court
into excusing him from his patently flawed decision to allow probation and to
practice fraud in the fair and accurate disposition of the instant administrative
case.
Same; Same; Same; Verily, an unrestricted glance into undeveloped and
tentative opinions of a judge, as he weighs the arguments of concerned parties,
dangerously opens avenues to pressure him to rule one way or the other and, falsely
or not, invites cynical attention to his shifts of opinions while judgment is being
purposely perfected as ostensible badges of partiality and impropriety.—The
ineptitude and incompetence of Judge Mijares and his sloven management of court
records are, to say the least, deplorable. As shown by complainant Poso’s possession
of Exh. “D,” the premature publication of a distinct version of the Resolution has
no doubt compromised the sanctity and confidentiality of the judgment process to
the detriment of every effort to promote trust and confidence in the decisions of
judges. Verily, an unrestricted glance into undeveloped and tentative opinions of a
judge, as he weighs the arguments of concerned parties, dangerously opens avenues
to pressure him to rule one way or the other and, falsely or not, invites cynical
attention to his shifts of opinions while judgment is being purposely perfected as
ostensible badges of partiality and impropriety. Consequently, while a judge may
have just stated an exploratory ruling in the case, it becomes difficult for him to
backtrack and
487
VOL. 387, AUGUST 21, 2002 487
Poso vs. Mijares
change his opinion in the final decision without losing his credibility and
never recovering it in the eyes of a distrustful litigant and the wary public.
Same; Same; Same; As administrators of courts, judges should adopt a fail-
safe system of confidential records management which is ever ready to fend off
CRIMINAL LAW | PENALTIES
unhampered scavenging of a judge’s ideas and assessments from the glare and gore
of publicity and pressure by interested parties.—As administrators of courts, judges
should adopt a fail-safe system of confidential records management which is ever
ready to fend off unhampered scavenging of a judge’s ideas and assessments from
the glare and gore of publicity and pressure by interested parties. Not least of all
this mechanism is essential to protect the independence of decision-making by
those tasked to exercise judicial power. In the present case, the indiscriminate
availability of even a draft resolution indicates no less than gross inexcusable
negligence on the part of respondent Judge and a violation of Rule 3.08 of the Code
of Judicial Conduct directing judges to perform administrative responsibilities
diligently and to maintain professional competence assiduously in court
management.
Same; Same; Same; Criminal Law; Mitigating Circumstances; Voluntary
Surrender; Intoxication; Evidence; It is elementary that voluntary surrender and
intoxication cannot be admitted without evidence of factual requisites.—It is
elementary that voluntary surrender and intoxication cannot be admitted without
evidence of factual requisites. For voluntary surrender to be appreciated, effort
must be made to present evidence showing the interest of the accused to surrender
unconditionally to the authorities either because he acknowledges his guilt or
because he wishes to save them the trouble and expenses necessarily incurred in
his search and capture. In intoxication, it is necessary that the accused present
proof of having taken a quantity of alcoholic beverage prior to the commission of
the crime sufficient to produce the effect of obfuscating reason. At the same time,
he must prove that he is not a habitual drinker and that he did not take the
alcoholic drink purposely to reinforce his resolve to commit the crime.
Same; Same; Same; Admittedly, judges cannot be held to account for
erroneous judgments rendered in good faith but this defense has been all too
frequently cited to the point of staleness—in truth, good faith in situations of fallible
discretion inheres only within the parameters of tolerable judgment and does not
apply where the issues are so simple and the applicable legal principle evident and
basic as to be beyond permissible margins of error.—We need not belabor
jurisprudence to accommodate respondent Judge’s argument which in effect posits
that not every judicial error be-
488
488 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
speaks ignorance of the law and that, if committed in good faith, does not
warrant administrative sanctions. So we have ruled and acted consistently, for to
decide otherwise would be nothing short of harassing judges to take the fantastic
and impossible oath of rendering infallible judgments. However, in the present
case, the rule shielding honest errors of opinion from punishment does not apply.
Admittedly judges cannot be held to account for erroneous judgments rendered in
good faith but this defense has been all too frequently cited to the point of staleness.
In truth, good faith in situations of fallible discretion inheres only within the
parameters of tolerable judgment and does not apply where the issues are so simple
P a g e 266 | 279
and the applicable legal principle evident and basic as to be beyond permissible
margins of error.
Same; Same; Same; Gross Ignorance of the Law; A judge owes it to himself
and his office to know by heart basic legal principles and to harness his legal know-
how correctly and justly—anything less than that is constitutive of the serious
charge of gross ignorance of the law, perhaps, grave misconduct.—In the case at
bar, Judge Mijares was faced with the plain task of comprehending mitigating
circumstances, a topic in freshman criminal law. For a judge of respondent Judge’s
stature and experience of twenty-three (23) years of service in the judiciary, to still
err thereon must quite obviously be ignorance of the law or even a subterfuge for
an unworthy and corrupt purpose. While it may be true that the handling public
prosecutor did not object to his appreciation of the mitigating circumstances,
respondent Judge was no less excused from his judicial duty to observe the law he
was bound to know and sworn to uphold. A judge owes it to himself and his office
to know by heart basic legal principles and to harness his legal know-how correctly
and justly. Anything less than that, as respondent Judge exhibited in Crim. Case
No. 2477, is constitutive of the serious charge of gross ignorance of the law, perhaps,
grave misconduct.
Same; Same; Same; Same; Indeterminate Sentence Law; Under the
Indeterminate Sentence Law, the court cannot put the minimum penalty in the same
period and the same degree as the maximum penalty, because the minimum penalty
“shall be within the range of the penalty next lower to that prescribed by the Code
for the offense.”—The Resolution speaks for its own monstrosity: “two (2) years, four
(4) months and one (1) day of prision correccional as minimum to six (6) years of
prision correccional as maximum.” Evidently, this penalty upon which the accused
applied for and was granted probation is contrary to the mandate of
the Indeterminate Sentence Law. If only to illustrate the rudimentary character of
this principle and its obvious misapplication, we quote from a freshman criminal
law
489
VOL. 387, AUGUST 21, 2002 489
Poso vs. Mijares
textbook—If the offense is punished by the Revised Penal Code, the court
shall sentence the accused to an indeterminate penalty the maximum term of
which shall be that which, in view of the attending circumstances, could be properly
imposed under the rules of the Revised Penal Code, and the minimum term of
which shall be within the range of the penalty next lower to that prescribed by the
Code for the offense (Sec. 1, Act No. 4103 as amended by Act No. 4225). The court
cannot put the minimum penalty in the same period and the same degree as the
maximum penalty, because the minimum penalty “shall be within the range of the
penalty next lower to that prescribed by the Code for the offense” (italics supplied).
Same; Same; Same; Same; Same; In violating the Indeterminate Sentence
Law to grant a relief more favorable to the accused than what the accused himself
asked for and ostensibly in preparation for other legal maneuvers, i.e., probation to
assure his unfettered pass from detention, respondent Judge indubitably acted with
grave abuse of discretion and caused undue injury to the complainant and other
CRIMINAL LAW | PENALTIES
private offended parties.—The penalty fixed by respondent Judge does not conform
to the sentence which the accused sought in his motion for reduction of penalty
from four (4) years, two (2) months and one (1) day of prision correccional as
minimum to eight (8) years and one (1) day of prision mayor as maximum, to two
(2) years, four (4) months and one (1) day of prision correccional as minimum to six
(6) years and one (1) day of prision mayor as maximum, and not to a prison term
below this as was ordered by respondent Judge. While a judge as a rule is not
barred from granting relief other than or even more beneficial than the relief
prayed for, the disposition must be consistent with law and equity. This certainly
is not the situation here. In violating the Indeterminate Sentence Law to grant a
relief more favorable to the accused than what the accused himself asked for and
ostensibly in preparation for other legal maneuvers, i.e., probation to assure his
unfettered pass from detention, respondent Judge indubitably acted with grave
abuse of discretion and caused undue injury to complainant Poso and the other
private offended parties.
Criminal Law; Anti-Graft and Corrupt Practices Act (R.A. No.
3019); Violation of Sec. 3(3) of R.A. 3019; Elements.—The grievous exercise of
discretion by respondent Judge constitutes desecration of his sacred oath to do
impartial justice to every one and an infringement of Sec. 3, par. (e), RA 3019 or
the Anti-Graft and Corrupt Practices Act, penalizing the criminal act of causing any
undue injury to any party including the government or giving any private party
any unwarranted benefits, advantage or preference. His manifest partiality in
granting the precipitate discharge of the accused from jail is notoriously
remarkable. No doubt the elements
490
490 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
of the offense are present in the instant case: (1) the respondent is a public
officer or a private person charged in conspiracy with the former; (2) the public
officer committed the prohibited acts in the performance of his official duties or in
relation to his or her public positions; (3) he caused undue injury to any party,
whether the government or a private party; and, (4) the public officer acted with
manifest partiality, evident bad faith, or gross inexcusable negligence.
Same; Probation; The statutory sequence of actions, i.e., order to conduct case
study prior to action on application for release on recognizance, was prescribed
precisely to underscore the interim character of the provisional liberty envisioned
under the Probation Law—the temporary liberty of an applicant for probation is
effective no longer than the period for awaiting the submission of the investigation
report and the resolution of the petition; A judge, by allowing the temporary liberty
of the accused even before the order to submit the case study and report,
unceremoniously extend the pro tem discharge of the accused to the detriment of the
prosecution and the private complainants.—On 11 January 1996, with undue and
irresponsible haste, respondent Judge allowed the accused in Crim. Case No. 2477
the privilege of temporary liberty under the recognizance of respondent Flor Serio
even before he could act on the application for probation and without the benefit of
notice and hearing for both the prosecution and the private complainants. His
P a g e 267 | 279
unwarranted eagerness to free the accused from jail is even more manifest from
the fact that the application for probation was filed also on the same day that he
directed the release of the accused on recognizance. Under the Probation Law,
i.e., P.D. 968 as amended by P.D. 2990, respondent Judge could have authorized
the temporary liberty of the accused only while “[p]ending submission of the
investigation report and the resolution of the petition.” This was evidently
contravened for it was only on 12 January 1996 that Judge Mijares instructed the
Probation Officer to initiate and conduct the necessary case study and investigation
on the application for probation. It must be stressed that the statutory sequence of
actions, i.e., order to conduct case study prior to action on application for release on
recognizance, was prescribed precisely to underscore the interim character of the
provisional liberty envisioned under the Probation Law. Stated differently, the
temporary liberty of an applicant for probation is effective no longer than the period
for awaiting the submission of the investigation report and the resolution of the
petition, which the law mandates as no more than sixty (60) days to finish the case
study and report and a maximum of fifteen (15) days from receipt of the report for
the trial judge to resolve the application for probation. By allowing the temporary
liberty of the accused even before the order to submit the case study and report,
respondent Judge unceremoniously extended
491
VOL. 387, AUGUST 21, 2002 491
Poso vs. Mijares
the pro tem discharge of the accused to the detriment of the prosecution and
the private complainants.
Same; Same; Probation is a mere privilege and discretionary upon the court,
to be exercised primarily for justice and public interest and merely incidentally for
the benefit of the accused.—It is apparent that respondent Judge ordered the
release of the accused even before he could assess that the latter was not
a “disqualified offender” under Sec. 9 of the Probation Law, i.e., “sentenced to serve
a maximum term of imprisonment of more than six years,” which he could have
otherwise done had he ordered the release only after he had instructed the
accomplishment of the case study. Putting the discharge of the accused on hold
would have allowed Judge Mijares more time to pass upon the request for
provisional liberty. In addition, the unsolicited fervor to release the accused
significantly deprived the prosecution and the private complainants of their right
to due process. Contrary to the argument of respondent Judge, the prosecution
along with the private complainants has every right to be heard on the application
of the accused for temporary liberty upon recognizance. To stress, probation is a
mere privilege and discretionary upon the court, to be exercised primarily for
justice and public interest and merely incidentally for the benefit of the accused.
Certainly, if respondent Judge’s discretion is to be exercised soundly, as he should
have done, he had no better witnesses to hear than the prosecution and the private
complainants who, having definitely greater stakes than others in the untimely
liberty of the accused, could have disproved the propriety of his provisional
discharge of the accused for being disadvantageous to society.
CRIMINAL LAW | PENALTIES
Same; Same; Due diligence on the part of a judge should have elicited the
indispensable information that Del Rosario v. Rosero, 211 Phil. 406 (1983), had
been superceded and that BP 76 had been modified in relevant parts—clearly,
respondent Judge wrongly granted probation to an ineligible applicant in a manner
embarrassing to his vocation as judge of a court of justice.—There is no merit in
respondent Judge’s view, citing Del Rosario v. Rosero and BP 76 amending
the Probation Law, that a conviction for six (6) years and one (1) day of prision
mayor did not have the effect of disqualifying the accused from probation. Due
diligence should have elicited the indispensable information that Del Rosario had
been superceded and that B.P. 76 had been modified in relevant parts. In Amandy
v. People, wherein the accused was sentenced to six (6) years and one (1) day, we
held that P.D. 1990 had amended B.P. 76 so as to disqualify offenders sentenced to
more than six (6) years as maximum term of imprisonment. Clearly, as the facts
demonstrate, respondent Judge wrongly granted
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492 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
probation to an ineligible applicant in a manner embarrassing to his vocation
as judge of a court of justice.
Courts; Judges; Judgments; Administrative Complaints; A decision or order
may be pronounced “unjust” in the same administrative proceeding where a judge
is taken to task for promulgating an allegedly unjust judgment or order; Bad faith
in the sense of a dishonest purpose, not the error, bad judgment or negligence per se,
is the cause for liability as well as the ground for penalty.—We stress that the
instant proceeding is itself an appropriate process to assail the injustice caused by
respondent Judge’s orders and to penalize him for it. In De Vera v. Pelayo we said
that a decision or order may be pronounced “unjust” in the same administrative
proceeding where a judge is taken to task for promulgating an allegedly unjust
judgment or order. Particularly, to prove the transgression in the administrative
proceeding, it must be established that the respondent rendered judgment or
decision without basis in law and/or evidence and in a manner actuated by hatred,
envy, revenge, greed or some other similar motive. Stated otherwise, if in rendering
judgment the judge fully knew or could not but have known that the same is unjust
in the sense aforesaid then he must have acted maliciously. Bad faith in the sense
of a dishonest purpose, not the error, bad judgment or negligence per se, is the
cause for liability as well as the ground for penalty.
Same; Same; Same; Same; Probation; Clearly, the court cannot stop short of
annulling the tainted proceedings and in the process enshrine an appearance of
doing justice only by halves; A judgment rendered with grave abuse of discretion or
without due process does not exist in legal contemplation and cannot be considered
to have attained finality for the simple reason that a void judgment has no legality
from its inception; To be sure, it has been said that probation is not a sentence but
is in effect a suspended sentence or an interlocutory judgment, for which reason, it
cannot be argued that courts are barred from correcting manifest injustice in the
improvident and corrupt grant of probation.—We cannot stop short of annulling
the tainted proceedings in Crim. Case No. 2477 and in the process enshrine an
P a g e 268 | 279
appearance of doing justice only by halves. Marred by what is obviously a
miscarriage of judicial ethics, the proceedings beginning with the issuance of the
controversial 10 January 1996 Resolution are patently void and therefore produce
no legal effects whatsoever. From the lowering of the penalty to qualify the accused
for probation, the authorization for temporary liberty on recognizance, and finally
the grant of probation, the orders of respondent Judge arising from these
proceedings do not compel respectability and finality to constitute res judicata or
even double jeopardy. A judgment rendered with grave abuse of discretion or
without due
493
VOL. 387, AUGUST 21, 2002 493
Poso vs. Mijares
process does not exist in legal contemplation and cannot be considered to have
attained finality for the simple reason that a void judgment has no legality from its
inception. It may be attacked directly or collaterally and set aside as in the instant
case. To be sure, it has been said that probation is not a sentence but is in effect a
suspended sentence or an interlocutory judgment, for which reason, it cannot be
argued that courts are barred from correcting manifest injustice in the improvident
and corrupt grant of probation. At any rate, and without tinge of doubt, bare
technical adherence to the letter of the law and jurisprudence should not excuse
our obligation in settings attended by unusual circumstances to rectify evident
iniquity.
Same; Same; Same; The general rule that the Supreme Court does not review
a trial court’s decision in an administrative proceeding is not controlling where, in
the considered opinion of the Court, the situation calls for the exercise of its equity
jurisdiction to the end that complete justice is rendered to all affected parties.—We
recognize the general rule that this Court does not review a trial court’s decision in
an administrative proceeding since its main concern therein is to determine the
ethical responsibilities of judicial conduct. Nonetheless, in the instant case, it is our
considered opinion that the salutary principle is not controlling. Under clear
considerations before us, the situation calls for the exercise of our equity
jurisdiction to the end that we render complete justice to all affected parties. As we
have said, “Equity as the complement of legal jurisdiction seeks to reach and do
complete justice where courts of law, through the inflexibility of their rules and
want of power to adapt their judgments to the special circumstances of cases, are
incompetent so to do. Equity regards the spirit of and not the letter, the intent and
not the form, the substance rather than the circumstance, as it is variously
expressed by different courts.” Indeed, a court of equity which has taken
jurisdiction and cognizance of a cause for any purpose will ordinarily retain
jurisdiction for all purposes and award relief so as to accomplish full justice
between the party litigants, prevent future litigation and make performance of the
court’s decree perfectly safe to those who may be compelled to obey it.
Same; Same; Same; Faith in the administration of justice exists only if every
party-litigant is assured that the occupants of the bench are rich in moral fiber and
strong in their grasp of legal principles.—Faith in the administration of justice
exists only if every party-litigant is assured that the occupants of the bench are
CRIMINAL LAW | PENALTIES
rich in moral fiber and strong in their grasp of legal principles. Unfortunately,
respondent Judge failed to exhibit these qualities in both his discharge of sworn
duties and his manner of defending himself before this Court in the instant
proceedings. The brazen
494
494 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
flaunting of our disciplining authority through the fraudulent imposition of
the doctored 10 January 1996 Resolution along with the persistent and deliberate
heedlessness of key precedents and elementary legal precepts is palpable from his
actions. Having been judge for twenty-three (23) years, he should have appreciated
by now that no position in government service exacts greater demand on honesty
and integrity upon the individual than a seat in the judiciary. He should have taken
this lesson to heart if not for the fact of his status as judge then for the consideration
that a previous administrative case had once been decided against him.
ADMINISTRATIVE MATTER in the Supreme Court. Violation of Sec. 3, par. (e)
of RA 3019, Gross Ignorance of the Law.
The facts are stated in the opinion of the Court.
Diosdado C. Sebrio, Jr. for complainant.
Amancio C. Balicud for Judge J.H. Mijares.
Napoleon Uy Galit and Associates Law Offices for F. Selbijan Serio.
PER CURIAM:
THIS IS NOT THE FIRST TIME that respondent Judge Jose H. Mijares, RTC-Br.
21, Laoang, Northern Samar, is hailed to Court to defend his integrity and
competence. Previously, for dismissing a petition for mandamus even long after a
final executory judgment thereon had been rendered based on a compromise
agreement executed by the parties, and his open admission of negligence and lack
of care in attending to incidents brought before him for adjudication, this Court
found him guilty of gross ignorance of the law. We meted him a fine of P5,000.00
with stern warning that repetition of the same or similar infractions complained of
would be dealt with more severely.1 Obviously, by then, particularly after our stern
warning intended to be taken seriously and committed to both heart and memory,
he should have been more solicitous in his task to steer clear of blunders, especially
their repetitions, and to
_______________
1 Dadap-Malinao v. Mijares, A.M. No. RTJ-99-1475, 12 December 2001, 372
SCRA 128.
495
VOL. 387, AUGUST 21, 2002 495
P a g e 269 | 279
 Poso vs. Mijares
satisfy claims in a manner which, although late in coming, he could have rightfully
and lawfully done.
Unfortunately, except for the inclusion of respondent Flor Serio, OIC Clerk of
Court, RTC, Northern Samar, the instant complaint for administrative sanctions
against Judge Mijares for allegedly railroading the criminal case against a self-
confessed killer and admitting him to probation, which unduly obviated the
accused’s otherwise definite date with prison, reflects the same incompetence
earlier established on his part. Worse, the complaint demonstrates his apparent
incorrigibility as exhibited by documents on record showing res ipsa loquitur, a
sinister pattern of bad faith to favor the accused therein with a mere slap on the
wrist and to foist fraud upon this Court. While the rules excuse honest errors of
discretion as acceptable professional hazards, a defense ardently raised by
respondent Judge, the series of his unbelievable mistakes in the application of basic
legal principles on probation and criminal penalties together with his clear attempt
at deception ought to be exposed, and punished, despite his pretensions of
uprightness and sincerity.
The instant administrative case stemmed from the proceedings in Crim. Case
No. 2477 for murder, “People v. Virgilio de Guia,” where the victim, a certain Lito
M. Galupo, was a relative of complainant Oscar M. Poso. On 6 February 1995 the
criminal case was raffled to RTC-Br. 21, Laoang, Northern Samar,2 presided over
by respondent Judge Jose H. Mijares in an acting capacity by detail from his
regular station at RTC-Br. 26, San Juan, Southern Leyte.3 On 16 October 1995 the
accused was arraigned and pleaded not guilty to the charge. Accordingly, the case
was set for pre-trial and trial on 10 November 1995 but the proceedings were reset
to 27 November 1995.4
On 27 November 1995, in the course of the pre-trial conference in Crim. Case
No. 2477,5 the accused withdrew his plea of not
_______________
Report and Recommendation dated 14 May 2002, p. 4.
2 VOL. 387, AUGUST 21, 2002
TSN, 10 January 2002, p. 30.
3
4 Id., p. 41.
5 TSN, 10 January 2002, pp. 42-45; TSN, 12 December 2001, p. 31; Complaint-
Affidavit, pp. 2-3; Rollo, p. 29.
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496 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
guilty6 and pleaded guilty to the lesser offense of homicide.7 This was done with the
open consent of handling Public Prosecutor Napoleon C. Lagrimas and the private
offended parties therein including complainant Oscar Poso.8 Parenthetically, it is
surprising for respondent Judge to testify that even before he assumed over RTC-
Br. 21 in an acting capacity in 1994, the Information in Crim. Case No. 2477 had
CRIMINAL LAW | PENALTIES
already been amended to homicide by crudely crossing out the original caption of
murder and writing the amended charge by hand when the same Information was
filed only in 1995 and other relevant proceedings therein took place not later than
the same year.9 On the same day and occasion of the pre-trial conference and
without receiving evidence of aggravating or mitigating circumstances, respondent
Judge promulgated the judgment or “Sentence,” finding the accused guilty of
homicide.10 Curiously, Judge Mijares made allowance for three (3) mitigating
circumstances, i.e., plea of guilty, voluntary surrender and intoxication, and
accordingly sentenced the accused to four (4) years, two (2) months and one (1) day
of prision correccional as minimum to eight (8) years and one (1) day of prision
mayor as maximum and ordered him to indemnify the heirs of the victim at
P40,000.00.11
Subsequent events in Crim. Case No. 2477 however complicated the otherwise
uneventful conviction of the accused. To begin with, there was dispute as to
whether the accused truly moved for reconsideration of the penalty imposed on him
by respondent Judge Mijares. Complainant averred that respondent Judge had
acted upon an unsigned motion which the accused did not even file with RTC-Br.
21. To prove his point he offered a two (2)-page unsigned document entitled “Motion
for Reconsideration” bearing no date of receipt by RTC-Br. 21.12 On the other hand,
respondent Judge presented a different motion for reconsideration which was
stamped received by RTC-Br. 21 with due notice to Public Prosecutor Napo-
_______________
6 See Note 2.
7 Exhs. “B” and “3”.
8 Complaint-Affidavit, p. 2; Rollo, p. 29.
9 See Note 4.
10 See Note 7.
11 Ibid.
12 Exh. “C”.
497
497
Poso vs. Mijares
leon C. Lagrimas together with the Branch Clerk of Court,13 as well as the trial
court’s notice of hearing of the motion duly addressed to and received by the Public
Prosecutor and the Public Attorney’s Office.14 Judge Mijares further asserted that
the motion was actually heard on 28 December 1995 with both the prosecution and
the defense in attendance. There is however no question that the prayer in the
motion for reconsideration, whether the copy held by complainant Poso or
respondent Judge’s record on file, was invariably for the reduction of the penalty
from four (4) years, two (2) months and one (1) day of prision correccional as
minimum to eight (8) years and one (1) clay of prision mayor as maximum, to
only two (2) years, four (4) months and one (1) day of prision correctional as
P a g e 270 | 279
minimum to six (6) years and one (1) day of prision mayor as maximum, and not to
any penalty below this.
Judge Mijares granted the motion for reconsideration in a Resolution dated 10
January 1996. Unfortunately however two (2) versions of the same Resolution, one
being the alleged draft version, and the other, a final copy thereof, although both
were penned by respondent Judge, surfaced and found circulation but each
imposing different maximum terms of the indeterminate sentence. Complainant
submitted a copy of the Resolution, Exh. “D,” reducing the penalty from four (4)
years, two (2) months and one (1) day of prision correccional as minimum to eight
(8) years and one (1) day of prision mayor as maximum, to two (2) years, four (4)
months and one (1) day of prision correccional as minimum to six (6) years and one
(1) day of prision mayor as maximum.
In contrast, the Resolution dated 10 January 1996 proffered by respondent
Judge, Exh. “6,” for no apparent reason, deviated from the motion for
reconsideration, oddly pegged both the minimum and the maximum ranges of the
indeterminate sentence at prision correccional in violation of the Indeterminate
Sentence Law, and ludicrously decreased the penalty to only two (2) years, four (4)
months and one (1) day of prision correccional as minimum to six (6) years of prision
correccional as maximum. It is at once apparent from the two (2) resolutions that
respondent Judge erased the
_______________
13Exh. “4”.
14Exh. “5”.
498
498 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
words “and one (1) day of prision mayor” in the dispositive portion of complainant’s
copy thereof15 and replaced them with “of prision correccional” as appearing in
Judge Mijares’ version of Resolution dated 10 January 1996.16 Respondent Judge
admitted that complainant’s copy was actually only a draft of his Resolution dated
10 January 1996 which in its final form was allegedly the document in the judge’s
custody.17
On 11 January 1996, taking his cue from the reduced penalty in Crim. Case No.
2477 and on the very day that the accused filed his application for probation and
release on recognizance, even before respondent Judge could act upon the
application for probation, he ordered the provisional discharge of the accused from
detention upon the recognizance of OIC Clerk of Court Flor Serio without hearing
the prosecution or giving any opportunity for the private complainants to
object.18 It was only the next day, or on 12 January 1996, that Judge Mijares
ordered the Probation Officer to initiate and conclude the necessary case study and
investigation on the application for probation. On 3 July 1996, upon the favorable
recommendation of the Probation Officer, respondent Judge placed the accused on
CRIMINAL LAW | PENALTIES
probation without objection from Public Prosecutor Napoleon C. Lagrimas in a
hearing called for this purpose.19
On 1 February 2001 the Office of the Ombudsman referred to this Court
the Complaint-Affidavit of Oscar M. Poso concerning the turn of events in Crim.
Case No. 2477 and charging respondent Judge Mijares with Knowingly Rendering
an Unjust Judgment, Issuing Unjust Interlocutory Orders, Concealment of
Documents and Commission of Acts punishable under Sec. 3, pars. (e) and (f) of RA
3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices
Act, and respondent OIC Clerk of Court Flor Serio with conspiracy to commit the
foregoing acts and concealment of documents.
_______________
15 Exh. “D”.
16 Exh. “6”.
17 TSN, 10 January 2002, pp. 61, 66-69.
18 Order dated 11 January 1996; Exhs. “E”, “F” and “G.”
19 TSN, 10 January 2002, pp. 72, 77-78; Exh. “9”.
499
VOL. 387, AUGUST 21, 2002 499
Poso vs. Mijares
Specifically, complainant alleged that respondent Judge unjustly and to the
prejudice of the People of the Philippines and the private complainants committed
the following acts in the course of the criminal case: (a) convicted the accused of
homicide, after he had pleaded guilty to this lesser offense, when the charge was
for murder of which he should have been convicted; (b) acted favorably on 10
January 1996 on an unsigned Motion for Reconsideration filed by the accused for
the reduction of the prison term imposed on him, i.e., from four (4) years, two (2)
months and one (1) day of prision correccional as minimum to eight (8) years and
one (1) day of prision mayor as maximum to two (2) years, four (4) months and one
(1) day of prision correccional as minimum to six (6) years and one (1) day of prision
mayor as maximum, without notice to the handling Public Prosecutor Napoleon C.
Lagrimas; (c) unjustly released the accused on 11 January 1996 on the recognizance
of OIC Clerk of Court, respondent Flor Serio, without notice and hearing; (d) gave
due course to the application of the accused for probation in his Order of 12 January
1996 without hearing and in violation of Sec. 9 of the Probation Law which provides
that the benefits of the law do not extend to those sentenced to serve a maximum
term of imprisonment of more than six (6) years; and, (e) barred the issuance of
certified copies of relevant documents in Crim. Case No. 2477 requested by
complainant for purposes of his appeal, in conspiracy with the OIC Clerk of Court
Flor Serio. Complainant contended that respondent Judge violated Sec. 3, pars. (e)
and (f), R.A. 3019, punishing the acts of causing any undue injury to any party
including the government or giving any private party any unwarranted benefits,
advantage or preference as well as neglecting or refusing, after due request and
P a g e 271 | 279
without sufficient justification, to act within a reasonable time on any matter
pending for the purpose of discriminating against any interested party.
With respect to respondent Flor Serio, complainant alleged that the latter
unjustly refused, in violation of Sec. 3, par. (f), R.A. 3019, to furnish him with
certified copies of the following documents relative to Crim. Case No. 2477 which
were requested for purposes of perfecting an appeal, to wit: (a) Information; (b) Pre-
Trial Conference Order; (c) Sentence promulgated on 27 November 1995 finding the
accused guilty of homicide after he pleaded guilty to this lesser offense;
(d) Resolution dated 10 January 1996 acting on
500
500 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
accused’s Motion for Reconsideration praying for reduction of his penalty; and,
(e) Order dated 12 January 1996 acting upon the application for probation despite
the absence of notice and hearing and the appropriate penalty exceeding six (6)
years.
On 11 April 2001 respondent Judge filed his Comment denying the charges
against him, particularly, that he granted probation to one clearly disqualified
under the Probation Law. As proof thereof, respondent attached to
his Comment the allegedly genuine copy of the accused’s Motion for
Reconsideration dated 12 December 199520 and the supposedly authentic copy of
his Resolution dated 10 January 199621 wherein he reduced the penalty imposed
upon the accused from four (4) years, two (2) months and one (1) day of prision
correccional as minimum to eight (8) years and one (1) day of prision mayor as
maximum, to only two (2) years, four (4) months and one (1) day of prision
correccional as minimum to six (6) years of prision correccional as maximum. He
disclaimed the due execution of complainant’s copy of Resolution dated 10 January
1996, and refuted the allegation of complainant that the penalty he imposed upon
the accused was six (6) years and one (1) day of prision mayor as maximum which
would have otherwise disqualified the accused from probation. Respondent Judge
also averred that the prosecution and the defense were duly notified of the hearing
of the motion for reconsideration and were actually present thereat before he issued
the assailed resolution.
In a Letter-Comment dated 6 April 2001 respondent Flor Serio denied that she
had refused to issue certified copies of the documents requested by complainant
Poso for the sole reason that as the OIC Clerk of Court of the RTC of Northern
Samar she had no custody of the requested documents which were allegedly still in
the possession of the Clerk of Court for Branch 21 where Crim. Case No. 2477 was
pending.
In a Reply-Affidavit dated 23 May 2001 complainant branded as falsified
respondent Judge’s copy of Resolution dated 10 January 1996; prayed that Judge
Mijares be preventively suspended pending resolution of this case to prevent
further falsification of the
CRIMINAL LAW | PENALTIES
_______________
20Annexes “1” and “1-A” of Comment; Exh. “4”.
21Annexes “3” and “3-A,” id.; Exh. “6”.
501
VOL. 387, AUGUST 21, 2002 501
Poso vs. Mijares
records in Crim. Case No. 2477; and, insisted that respondent Judge acted upon
the Motion for Reconsideration filed by the accused without notice to handling
Prosecutor Lagrimas, a fact allegedly admitted by the prosecutor himself in
his Counter-Affidavit22 filed with the Office of the Ombudsman, and that the
records in Crim. Case No. 2477 were in the custody of OIC Clerk of Court Flor Serio
at the time the request for certified true copies thereof was made.
On 22 August 2001, confronted with two (2) conflicting versions of the
pivotal Resolution dated 10 January 1996, and the apparent mishandling of Crim.
Case No. 2477, we referred the instant case to Associate Justice Edgardo P. Cruz
of the Court of Appeals for an exhaustive investigation, report and
recommendation. On 25 October 2001 Justice Cruz summoned the complainant and
his adversaries, Judge Mijares and OIC Clerk of Court Serio, for pre-trial
conference. Evidence for the parties was received in several hearings held for this
purpose.23 Thereafter complainant Poso and respondent Judge submitted their
respective Memoranda while respondent Serio opted to file
a Manifestation adopting in toto the arguments and evidence of her co-respondent.
On 14 May 2002 Justice Cruz submitted to this Court his Report and
Recommendation of even date. His report called attention to the reprehensible
actuations of respondent Judge when he reduced the penalty to ridiculous terms so
as to qualify the accused for probation; hastily ordered the discharge of the accused
from jail on recognizance without the benefit of notice and hearing afforded the
prosecution and the aggrieved parties, and even before he could order the Probation
Officer to conduct the requisite post-sentence investigation on the accused in
violation of the Probation Law; illegally admitted the accused to probation despite
the appropriate maximum penalty for homicide exceeding six (6) years which he
should have been sentenced to serve; and, ignorantly awarded civil indemnity of
P40,000.00 to the heirs of the victim of homicide when the amount should have
been P50,000.00.
_______________
Annex “A” of Reply-Affidavit.
22
Hearings were conducted on 30 October 2001, 27 November 2001, 12
23
December 2001, 8 January 2002, and 10 January 2002.
502
502 SUPREME COURT REPORTS ANNOTATED
P a g e 272 | 279
 Poso vs. Mijares
Justice Cruz found him guilty of violating Sec. 3, par. (e), of RA 3019 or, at the very
least, gross ignorance of the law to the prejudice of the prosecution and the private
offended parties in Crim. Case No. 2477. He however recommended the dismissal
of the charges for Knowingly Rendering an Unjust Judgment and Issuing Unjust
Interlocutory Orders since the questioned judgment and orders had not been found
in appropriate proceedings to be unjust or unfair. Also recommended for dismissal
was the count for Concealment of Documents on the ground that there was no
factual basis for tasking Judge Mijares with custody of the requested documents.
For the same reason, the investigating Justice recommended the dismissal of the
complaint as against OIC Clerk of Court Flor Serio. The appropriate penalty for
the culpable acts of respondent Judge, according to Justice Cruz, was suspension
from office for four (4) months without pay with warning that repetition of the same
or similar offenses would be penalized more severely.
We find the investigation and report of Justice Cruz to be well-taken, but the
penalty he recommends appears to be disproportionate to the gravity of the
offenses. As has been painstakingly observed, respondent Judge Mijares had been
sternly warned in Dadap-Malinao v. Mijares24 that repetition of his mistakes, more
so aggravations thereof, would be dealt with more severely. Apparently the
warning did not work and hence we see no reason in employing it again for purposes
of this disciplinary case. Clearly, public interest in an adept and honest judiciary
dictates that notice of future harsher penalties should not be followed by another
forewarning of the same kind, ad infinitum, but by discipline through appropriate
penalties. This understanding should leave no doubt that, unless completely
absolved of the charges, respondent Judge faces a grimmer sentence than the four
(4)-month suspension and warning recommended by Justice Cruz.
First. We are not convinced that the two (2) copies of the 10 January
1996 Resolution penned by respondent Judge consist of the draft and the final
versions thereof. The fact that complainant received a signed copy of
the Resolution, Exh. “D,” in the ordinary course of court proceedings only shows
that Exh. “D” was the offi-
_______________
24See Note 1.
503
VOL. 387, AUGUST 21, 2002 503
Poso vs. Mijares
cial and final determination of the motion for reduction of penalty sought by the
accused in Crim. Case No. 2477. Quite obviously, in offering Exh. “6” as the
supposedly final version of the Resolution dated 10 January 1996, respondent
Judge is vainly attempting to justify the subsequent erroneous grant of probation
to the same accused since the penalty imposed under Exh. “D” absolutely
disqualifies him from probation. Exhibit “6” is clearly an afterthought meant by
CRIMINAL LAW | PENALTIES
Judge Mijares to deceive this Court into excusing him from his patently flawed
decision to allow probation and to practice fraud in the fair and accurate disposition
of the instant administrative case.
His lack of candor and outright dishonesty are not without recorded precedent.
In his previous administrative case, Dadap-Malinao v. Mijares,25 he already tried
to mislead this Court into believing that his assailed order therein actually
dismissed a mere motion and not the main petition itself, which would have been
irregular, by passing the blame upon his hapless typist for supposedly keying in
the word “petition” instead of “motion,” and by issuing another order two (2) years
later still claiming that he did not dismiss the petition in question. Significantly,
in our review of the record, we eventually found out that the object of his order was
indeed to dismiss the petition and not the supposedly insignificant motion, and that
his alleged honest error was in reality a cover up to escape the disciplinary
consequences of his foiled attempt to dismiss the petition in flagrant violation of
established precedents.
Second. Even if we are to believe as true the allegation of respondent Judge
that Exh. “D” was merely a draft of Exh. “6” and proceed from this theory, his
degenerate professional character would nonetheless be unmistakable. For,
whether by design or out of sheer negligence, his inefficiency allowed the circulation
of a mere draft of his 10 January 1996 Resolution in Crim. Case No. 2477, as he
would himself admit, which pegged the maximum term of the indefinite sentence
to more than six (6) years, when it was his intention to lower further the penalty
imposed therein as he in fact did in the allegedly official copy of the 10 January
1996 Resolution.
_______________
25Ibid.
504
504 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
The ineptitude and incompetence of Judge Mijares and his sloven management of
court records are, to say the least, deplorable. As shown by complainant Poso’s
possession of Exh. “D,” the premature publication of a distinct version of
the Resolution has no doubt compromised the sanctity and confidentiality of the
judgment process to the detriment of every effort to promote trust and confidence
in the decisions of judges. Verily, an unrestricted glance into undeveloped and
tentative opinions of a judge, as he weighs the arguments of concerned parties,
dangerously opens avenues to pressure him to rule one way or the other and, falsely
or not, invites cynical attention to his shifts of opinions while judgment is being
purposely perfected as ostensible badges of partiality and impropriety.
Consequently, while a judge may have just stated an exploratory ruling in the case,
it becomes difficult for him to backtrack and change his opinion in the final decision
without losing his credibility and never recovering it in the eyes of a distrustful
litigant and the wary public.
P a g e 273 | 279
 As did happen in the instant case, the divergent penalties in the draft and final
10 January 1996 Resolutions caused complainant Poso to believe that he and his
relatives, who were the private offended parties in Crim. Case No. 2477, got the
raw end of the deal. Their suspicion was bolstered no end by the grant of probation
to the accused, an exercise of judicial discretion emanating precisely from the
questioned Resolution. The error of respondent Judge, more accurately his
misconduct, veritably flaunted Rule 3.07 of the Code of Judicial
Conduct prohibiting judges from making public comments on any pending or
impending case when he allowed the public, i.e., complainant Poso, access to a draft
version of his 10 January 1996 Resolution. Unfortunately his flip-flopping
dispositions ruined every opportunity to appear credible and to project an image of
probity.
As administrators of courts, judges should adopt a fail-safe system of
confidential records management which is ever ready to fend off unhampered
scavenging of a judge’s ideas and assessments from the glare and gore of publicity
and pressure by interested
505
VOL. 387, AUGUST 21, 2002 505
Poso vs. Mijares
parties.26 Not least of all this mechanism is essential to protect the independence
of decision-making by those tasked to exercise judicial power. In the present case,
the indiscriminate availability of even a draft resolution indicates no less than
gross inexcusable negligence on the part of respondent Judge and a violation of
Rule 3.08 of the Code of Judicial Conduct directing judges to perform
administrative responsibilities diligently and to maintain professional competence
assiduously in court management.
Third. But contrary to the allegations of complainant Poso, respondent Judge
Mijares did not err when he convicted the accused in Crim. Case No. 2477 of
homicide and not of the original charge of murder. The conviction was the result of
plea bargaining whereby the accused pleaded guilty to the lesser offense of
homicide with the admitted consent of both handling Public Prosecutor Napoleon
C. Lagrimas and the private offended parties including herein complainant.
There was also no error in respondent Judge’s action to disregard in the
computation of the imposable penalty the aggravating circumstances of treachery
and evident premeditation alleged in the Information in Crim. Case No. 2477.
Simply because the accused pleaded guilty does not necessarily imply his wholesale
admission of the presence of aggravating circumstances. This is especially true in
the instant case where the plea of guilty to the lesser offense of homicide was
preceded by a plea of not guilty to murder, thus indicating the intention of the
accused to deny the existence of evident premeditation and treachery. 27 At any
rate, as we have held in People v. Latupan,28 qualifying and aggravating
circumstances, which are taken into consideration for the purpose of increasing the
degree of penalty to be imposed, must be proved with equal certainty as the
CRIMINAL LAW | PENALTIES
commission of the act charged and cannot be considered as being integrated with
the plea of guilty.
_______________
Tolentino v. Cabral, A.M. No. RTJ-00-1528, 28 March 2000, 329 SCRA 1.
26
See People v. De Lima, G.R. No. 77969, 22 June 1989, 174 SCRA 204.
27
28 G.R. Nos. 112453-56, 28 June 2001, 360 SCRA 60; People vs. Derilo, G.R. No.
117818, 18 April 1997, 271 SCRA 633; People v. Tampus, No. 1-44690, 28 March
1980, 96 SCRA 624.
506
506 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
Fourth. In his “Sentence,” despite the correct initial assessment made by
respondent Judge, he however egregiously credited the accused with three (3)
mitigating circumstances, i.e., plea of guilty, voluntary surrender and intoxication,
without receiving evidence to warrant the action.29 While respondent Judge could
have plausibly appreciated the plea of guilty of the accused as a mitigating
circumstance, since the guilty plea was entered and the sentence immediately
promulgated without any prosecution evidence having been offered, 30 we cannot
say this of his treatment of the other mitigating circumstances which violates basic
legal principles.
It is elementary that voluntary surrender and intoxication cannot be admitted
without evidence of factual requisites.31 For voluntary surrender to be appreciated,
effort must be made to present evidence showing the interest of the accused to
surrender unconditionally to the authorities either because he acknowledges his
guilt or because he wishes to save them the trouble and expenses necessarily
incurred in his search and capture.32 In intoxication, it is necessary that the
accused present proof of having taken a quantity of alcoholic beverage prior to the
commission of the crime sufficient to produce the effect of obfuscating reason. 33 At
the same time, he must prove that he is not a habitual drinker and that he did not
take the alcoholic drink purposely to reinforce his resolve to commit the crime. 34
We need not belabor jurisprudence to accommodate respondent Judge’s
argument which in effect posits that not every judicial error bespeaks ignorance of
the law and that, if committed in good faith, does not warrant administrative
sanctions. So we have ruled and acted consistently, for to decide otherwise would
be nothing short of harassing judges to take the fantastic and impossible oath of
rendering infallible judgments.
_______________
The indemnity of P40,000.00 awarded in Crim. Case No. 2477 may be
29
excused as exercise of respondent Judge’s permissible discretion.
30 People v. Intal, 101 Phil. 306 (1957).
31 People v. Kayanan, No. L-30355, 31 May 1978, 83 SCRA 437.
P a g e 274 | 279
 32 Id.; People v. Noble, 77 Phil. 104 (1946).
33 People v. Cortes, G.R. No. 137050, 11 July 2001, 361 SCRA 80.
34 Ibid.
507
VOL. 387, AUGUST 21, 2002 507
Poso vs. Mijares
However, in the present case, the rule shielding honest errors of opinion from
punishment does not apply. Admittedly judges cannot be held to account for
erroneous judgments rendered in good faith but this defense has been all too
frequently cited to the point of staleness. In truth, good faith in situations of fallible
discretion inheres only within the parameters of tolerable judgment and does not
apply where the issues are so simple and the applicable legal principle evident and
basic as to be beyond permissible margins of error.35
In the case at bar, Judge Mijares was faced with the plain task of
comprehending mitigating circumstances, a topic in freshman criminal law. For a
judge of respondent Judge’s stature and experience of twenty-three (23) years of
service in the judiciary, to still err thereon must quite obviously be ignorance of the
law or even a subterfuge for an unworthy and corrupt purpose. While it may be
true that the handling public prosecutor did not object to his appreciation of the
mitigating circumstances, respondent Judge was no less excused from his judicial
duty to observe the law he was bound to know and sworn to uphold. A judge owes
it to himself and his office to know by heart basic legal principles and to harness
his legal know-how correctly and justly. Anything less than that, as respondent
Judge exhibited in Crim. Case No. 2477, is constitutive of the serious charge of
gross ignorance of the law, perhaps, grave misconduct.
Fifth. While we do not give credence to complainant’s accusation that Judge
Mijares acted upon an unsigned motion for reconsideration and that he granted the
same without notice and hearing to the prosecution, for the documents on record
indubitably prove otherwise, we find several glaring irregularities in the rendition
of the 10 January 1996 Resolution. To begin with, there was confusion as to which
version of the Resolution, Exh. “6” or Exh. “D,” was authentic, a matter made worse
not only by the public’s improvident access to a draft version of the Resolution, if
respondent’s account were true, but also the deception foisted upon this Court in
the form of the devious Exh. “6.” Equally lamentable and incrimi-
_______________
35 Daracan v. Natividad, A.M. No. RTJ-99-1447, 27 September 2000, 341 SCRA
161.
508
508 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
CRIMINAL LAW | PENALTIES
nating is the penalty appearing in the allegedly official and final copy of the 10
January 1996 Resolution granting the motion for reduction of penalty in Crim.
Case No. 2477.
The Resolution speaks for its own monstrosity: “two (2) years, four (4) months
and one (1) day of prision correccional as minimum to six (6) years of prision
correccional as maximum.” Evidently, this penalty upon which the accused applied
for and was granted probation is contrary to the mandate of the Indeterminate
Sentence Law. If only to illustrate the rudimentary character of this principle and
its obvious misapplication, we quote from a freshman criminal law textbook—
If the offense is punished by the Revised Penal Code, the court shall sentence the
accused to an indeterminate penalty the maximum term of which shall be that
which, in view of the attending circumstances, could be properly imposed under the
rules of the Revised Penal Code, and the minimum term of which shall be within
the range of the penalty next lower to that prescribed by the Code for the offense
(Sec. 1, Act No. 4103 as amended by Act No. 4225). The court cannot put the
minimum penalty in the same period and the same degree as the maximum penalty,
because the minimum penalty “shall be within the range of the penalty next lower to
that prescribed by the Code for the offense” (italics supplied).36
Moreover, the penalty fixed by respondent Judge does not conform to the sentence
which the accused sought in his motion for reduction of penalty from four (4) years,
two (2) months and one (1) day of prision correccional as minimum to eight (8) years
and one (1) day of prision mayor as maximum, to two (2) years, four (4) months and
one (1) day of prision correccional as minimum to six (6) years and one (1) day of
prision mayor as maximum, and not to a prison term below this as was ordered by
respondent Judge. While a judge as a rule is not barred from granting relief other
than or even more beneficial than the relief prayed for, the disposition must be
consistent with law and equity. This certainly is not the situation here. In violating
the Indeterminate Sentence Law to grant a relief more favorable to the accused
than what the accused himself asked for and ostensibly in preparation for other
legal maneuvers, i.e., probation to assure his unfettered pass from de-
_______________
36L.B. Reyes, The Revised Penal Code: Book One (1993), p. 774.
509
VOL. 387, AUGUST 21, 2002 509
Poso vs. Mijares
tention, respondent Judge indubitably acted with grave abuse of discretion and
caused undue injury to complainant Poso and the other private offended parties.
The grievous exercise of discretion by respondent Judge constitutes desecration
of his sacred oath to do impartial justice to every one and an infringement of Sec.
3, par. (e), RA 3019 or the Anti-Graft and Corrupt Practices Act, penalizing the
criminal act of causing any undue injury to any party including the government or
giving any private party any unwarranted benefits, advantage or preference. His
manifest partiality in granting the precipitate discharge of the accused from jail is
P a g e 275 | 279
notoriously remarkable. No doubt the elements of the offense are present in the
instant case: (1) the respondent is a public officer or a private person charged in
conspiracy with the former; (2) the public officer committed the prohibited acts in
the performance of his official duties or in relation to his or her public positions; (3)
he caused undue injury to any party, whether the government or a private party;
and, (4) the public officer acted with manifest partiality, evident bad faith, or gross
inexcusable negligence.37
Sixth. On 11 January 1996, with undue and irresponsible haste, respondent
Judge allowed the accused in Crim. Case No. 2477 the privilege of temporary
liberty under the recognizance of respondent Flor Serio even before he could act on
the application for probation and without the benefit of notice and hearing for both
the prosecution and the private complainants. His unwarranted eagerness to free
the accused from jail is even more manifest from the fact that the application for
probation was filed also on the same day that he directed the release of the accused
on recognizance. Under the Probation Law, i.e., P.D. 968 as amended by P.D. 2990,
respondent Judge could have authorized the temporary liberty of the accused only
while “[p]ending submission of the investigation report and the resolution of the
petition.”38 This was evidently contravened for it was only on 12 January 1996 that
Judge Mijares instructed the
_______________
37Arroyo v. Alcantara, A.M. No. P-01-1518, 14 November 2001, 368 SCRA 567.
38Sec. 7.
510
510 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
Probation Officer to initiate and conduct the necessary case study and investigation
on the application for probation.
It must be stressed that the statutory sequence of actions, i.e., order to conduct
case study prior to action on application for release on recognizance, was prescribed
precisely to underscore the interim character of the provisional liberty envisioned
under the Probation Law. Stated differently, the temporary liberty of an applicant
for probation is effective no longer than the period for awaiting the submission of
the investigation report and the resolution of the petition, which the law mandates
as no more than sixty (60) days to finish the case study and report and a maximum
of fifteen (15) days from receipt of the report for the trial judge to resolve the
application for probation.39 By allowing the temporary liberty of the accused even
before the order to submit the case study and report, respondent Judge
unceremoniously extended the pro tem discharge of the accused to the detriment of
the prosecution and the private complainants.
Furthermore, it is apparent that respondent Judge ordered the release of the
accused even before he could assess that the latter was not a “disqualified
offender” under Sec. 9 of the Probation Law, i.e., “sentenced to serve a maximum
CRIMINAL LAW | PENALTIES
term of imprisonment of more than six years,” which he could have otherwise done
had he ordered the release only after he had instructed the accomplishment of the
case study. Putting the discharge of the accused on hold would have allowed Judge
Mijares more time to pass upon the request for provisional liberty. In addition, the
unsolicited fervor to release the accused significantly deprived the prosecution and
the private complainants of their right to due process. Contrary to the argument of
respondent Judge, the prosecution along with the private complainants has every
right to be heard on the application of the accused for temporary liberty upon
recognizance. To stress, probation is a mere privilege and discretionary upon the
court, to be exercised primarily for justice and public interest and merely
incidentally for the benefit of the accused.40 Certainly, if respondent Judge’s
discretion is to be exercised soundly, as he should
_______________
39Ibid.
40Bala v. Martinez, G.R. No. 67301, 29 January 1990, 181 SCRA 459.
511
VOL. 387, AUGUST 21, 2002 511
Poso vs. Mijares
have done, he had no better witnesses to hear than the prosecution and the private
complainants who, having definitely greater stakes than others in the untimely
liberty of the accused, could have disproved the propriety of his provisional
discharge of the accused for being disadvantageous to society.
More than anything else, respondent Judge has shown either utter disregard
for or total ignorance of the basic provisions of the Probation Law. It need not be
underscored that one of his basic obligations is to understand the law fully and
uphold it conscientiously. When the law is sufficiently basic, a judge owes it to his
office to know and simply apply it for anything less is constitutive of gross ignorance
of the law and manifest partiality punishable under Sec. 3, par. (e), R.A. 3019.41
Seventh. Respondent Judge abused the mandate of his office when he granted
probation to the accused in Crim. Case No. 2477. Obviously, the accused was
a “disqualified offender” under Sec. 9 of the Probation Law, since under the
undisputed facts of the case the imposable maximum term of imprisonment upon
him is more than six (6) years.42 The penalty for homicide, the crime to which the
accused confessed guilt, is reclusion temporal.43 Even if respondent Judge were
correct in appreciating three (3) mitigating circumstances, i.e., plea of guilty,
voluntary surrender and intoxication, the imposable maximum prison term would
nonetheless be prision mayor which carries a period of incarceration ranging from
six (6) years and one (1) day to twelve (12) years.44
_______________
41 Creer v. Fabillar, A.M. No. MTJ-99-1218, 14 August 2000, 337 SCRA 632.
P a g e 276 | 279
 42 Sec. 9 reads in part: “The benefits of this Decree shall not be extended to
those x x x (a) sentenced to serve a maximum term of imprisonment of more than
six years.”
43 Art. 249, The Revised Penal Code.
44 Under Art. 64, par. 5, id., “[w]hen there are two or more mitigating
circumstances and no aggravating circumstances are present, the court shall
impose the penalty next lower to that prescribed by law, in the period that it may
deem applicable, according to the number and nature of such circumstances.”
512
512 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
There is no merit in respondent Judge’s view, citing Del Rosario v.
Rosero45 and B.P. 76 amending the Probation Law,46 that a conviction for six (6)
years and one (1) day of prision mayor did not have the effect of disqualifying the
accused from probation. Due diligence should have elicited the indispensable
information that Del Rosario had been superceded and that B.P. 76 had been
modified in relevant parts. In Amandy v. People,47 wherein the accused was
sentenced to six (6) years and one (1) day, we held that P.D. 1990 had amended B.P.
76 so as to disqualify offenders sentenced to more than six (6) years as maximum
term of imprisonment.48 Clearly, as the facts demonstrate, respondent Judge
wrongly granted probation to an ineligible applicant in a manner embarrassing to
his vocation as judge of a court of justice.
Eighth. We agree with the findings of the Investigating Justice that no evidence
adequately proves the charge that OIC Clerk of Court Flor Serio conspired with
respondent Judge to cause any undue injury to complainant and the other private
offended parties in Crim. Case No. 2477 or to give the accused therein the
unwarranted benefit of probation, it being clear from the evidence that only Judge
Mijares perpetrated the act. Neither did they refuse to issue certified true copies of
relevant documents in Crim. Case No. 2477 since it was established that the
custody of the requested documents was not with respondents so that they could
not have refused the request. Something more had to be presented than
complainant’s loose statements. However, we do not agree with the other
conclusion in the report that the offense of Knowingly Rendering an Unjust
Judgment or Issuing Unjust Interlocutory Orders
_______________
211 Phil. 406 (1983).
45
In 1980, B.P. 76 amended Sec. 9 of P.D. 968 by stating that the benefits of
46
the Decree shall not be extended to those “sentenced to serve a maximum term of
imprisonment of more than six years and one day.”
47 G.R. No. 76258, 23 May 1988, 161 SCRA 436; see Palo v. Militante, G.R. No.
76100, 18 April 1990, 184 SCRA 395.
48 Thus we said: “Subsequently, in 1985 then President Marcos promulgated
P.D. 1990 which amended BP 76 and returned to the earlier formulation in PD 968.
CRIMINAL LAW | PENALTIES
The latest decree on the matter excludes from the benefits of the Probation Law
any applicant who has been ‘sentenced to serve a maximum term of imprisonment
of more than six years.’ ”
513
VOL. 387, AUGUST 21, 2002 513
Poso vs. Mijares
has not been established since, according to Justice Cruz, the basic fact of injustice
must still be determined a priori by a competent court in an appropriate
proceeding, thus implying that the present administrative case is not suited for this
purpose.
We stress that the instant proceeding is itself an appropriate process to assail
the injustice caused by respondent Judge’s orders and to penalize him for it. In De
Vera v. Pelayo49 we said that a decision or order may be pronounced “unjust” in the
same administrative proceeding where a judge is taken to task for promulgating
an allegedly unjust judgment or order. Particularly, to prove the transgression in
the administrative proceeding, it must be established that the respondent rendered
judgment or decision without basis in law and/or evidence and in a manner
actuated by hatred, envy, revenge, greed or some other similar motive. 50 Stated
otherwise, if in rendering judgment the judge fully knew or could not but have
known that the same is unjust in the sense aforesaid then he must have acted
maliciously. Bad faith in the sense of a dishonest purpose, not the error, bad
judgment or negligence per se, is the cause for liability as well as the ground for
penalty.
It is crystal clear that the assailed orders of respondent Judge are contrary to
law and are motivated by premeditated efforts to cause injustice. To recall, by his
own admission, he lowered the penalty imposed upon the accused in Crim. Case
No. 2477 to absurd limits and later authorized his pass from jail, first provisionally
then permanently, to the prejudice of the prosecution and the private offended
parties. Downgrading the penalty to a range lower than the prison term prescribed
by law enabled the accused to elude incarceration and apply for probation as he in
fact did. In so deciding, respondent Judge trifled with express provisions of our
penal laws. Not only did he display gross ignorance of the law, he also capriciously
tinkered with established legal precepts.
The protestations of respondent Judge that the error committed can only be an
honest error of judgment precluding administrative sanction are errant and
insipid. In the first place, he ought to have
_______________
G.R. No. 137354, 6 July 2000, 335 SCRA 281; In Re Joaquin T.
49
Borromeo, A.M. No. 93-7-696-0, 21 February 1995, 241 SCRA 405.
50 See Note 35.
514
514 SUPREME COURT REPORTS ANNOTATED
P a g e 277 | 279
 Poso vs. Mijares
known that his authority to fix penalties in accordance with his actual findings is
circumscribed by law. More than that, a visible thread of partiality for the accused
runs through the entire proceedings, particularly during the last stages. Truly, the
severity of the divergence between his hurried, although calculated, actions and
the indubitable principles as well as precedents governing criminal penalties
suggests no other conclusion than that he deliberately wanted to set the accused
free regardless of the dictates of conscience and the imperatives of law.
Res ipsa loquitor. The questioned actuations of respondent Judge and the
attendant circumstances brook no explanation consistent with good faith or lack of
malice and must be counted as constitutive of serious misconduct. On the face of
the assailed orders, there was an inexplicable series of grave errors bereft of any
redeeming feature and signifying an unjust decision. Indeed, when the inefficiency
springs from failure to consider so basic and elemental a rule, law or principle in
the discharge of duties, the judge is either insufferably incompetent and
undeserving of the position and title he holds, or is too vicious that the oversight or
omission was deliberately done in bad faith and in grave abuse of judicial authority.
This is the case here. Moreover, the absence of credible explanation from
respondent Judge to disprove or otherwise mitigate the strong inference of
malicious design unfortunately exacerbates the situation. When asked to explain,
he was unable to give any rational justification for his actions even as his
explanations, off-tangent as they were, only reinforced the depths of the injustice
he had created. It is therefore our finding that he perpetrated the offense
of Knowingly Issuing Unjust Orders.
Ninth. It will not do, however, to dispose of the controversy by simply declaring
the administrative culpability of respondent Judge upon a matter literally dealing
with life and death. To maintain the status quo in Crim. Case No. 2477 would
surely leave hanging or in suspended animation the underlying issue of justice not
only in the instant proceeding but in the criminal action as well.
Clearly, we cannot stop short of annulling the tainted proceedings in Crim.
Case No. 2477 and in the process enshrine an appearance of doing justice only by
halves. Marred by what is obvi-
515
VOL. 387, AUGUST 21, 2002 515
Poso vs. Mijares
ously a miscarriage of judicial ethics, the proceedings beginning with the issuance
of the controversial 10 January 1996 Resolution are patently void and therefore
produce no legal effects whatsoever. From the lowering of the penalty to qualify the
accused for probation, the authorization for temporary liberty on recognizance, and
finally the grant of probation, the orders of respondent Judge arising from these
proceedings do not compel respectability and finality to constitute res judicata or
even double jeopardy.
A judgment rendered with grave abuse of discretion or without due process does
not exist in legal contemplation and cannot be considered to have attained finality
CRIMINAL LAW | PENALTIES
for the simple reason that a void judgment has no legality from its inception. 51 It
may be attacked directly or collaterally and set aside as in the instant case. To be
sure, it has been said that probation is not a sentence but is in effect a suspended
sentence or an interlocutory judgment,52 for which reason, it cannot be argued that
courts are barred from correcting manifest injustice in the improvident and corrupt
grant of probation. At any rate, and without tinge of doubt, bare technical
adherence to the letter of the law and jurisprudence should not excuse our
obligation in settings attended by unusual circumstances to rectify evident
iniquity.
We recognize the general rule that this Court does not review a trial court’s
decision in an administrative proceeding since its main concern therein is to
determine the ethical responsibilities of judicial conduct.53 Nonetheless, in the
instant case, it is our considered opinion that the salutary principle is not
controlling. Under clear considerations before us, the situation calls for the exercise
of our equity jurisdiction to the end that we render complete justice to all affected
parties. As we have said, “Equity as the complement of legal jurisdiction seeks to
reach and do complete justice where courts of law, through the inflexibility of their
rules and want of
_______________
People v. Velasco, G.R. No. 127444, 13 September 2000, 340 SCRA
51
207; People v. Magat, G.R. No. 130026, 31 May 2000, 332 SCRA 517; People v.
Court of Appeals, G.R. No. 128986, 21 June 1999, 308 SCRA 687.
52 See Note 40.
53 Belga v. Buban, A.M. No. RTJ-99-1512, 9 May 2000, 331 SCRA 531; Ng v.
Alfaro, A.M. No. P-93-959, 1 December 1994, 238 SCRA 486.
516
516 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
power to adapt their judgments to the special circumstances of cases, are
incompetent so to do. Equity regards the spirit of and not the letter, the intent and
not the form, the substance rather than the circumstance, as it is variously
expressed by different courts.”54 Indeed, a court of equity which has taken
jurisdiction and cognizance of a cause for any purpose will ordinarily retain
jurisdiction for all purposes and award relief so as to accomplish full justice
between the party litigants, prevent future litigation and make performance of the
court’s decree perfectly safe to those who may be compelled to obey it.55
In this regard, we instruct RTC-Br. 21, Laoang, Northern Samar, in Crim. Case
No. 2477 to call the case once again taking stock of our pronouncements in the
instant case. The trial court shall order the arrest of accused Virgilio de Guia to
restore the status quo ante prior to his release on recognizance. It shall forthwith
hear the accused and the prosecution solely for the purpose of establishing the
mitigating or aggravating circumstances, as the case may be. The trial court shall
P a g e 278 | 279
then promulgate judgment paying particular attention to the proper application of
the Indeterminate Sentence Law and the plea of guilty of the accused to homicide.
From thereon, let justice take its proper course.
Faith in the administration of justice exists only if every party-litigant is
assured that the occupants of the bench are rich in moral fiber and strong in their
grasp of legal principles. Unfortunately, respondent Judge failed to exhibit these
qualities in both his discharge of sworn duties and his manner of defending himself
before this Court in the instant proceedings. The brazen flaunting of our
disciplining authority through the fraudulent imposition of the doctored 10
January 1996 Resolution along with the persistent and deliberate heedlessness of
key precedents and elementary legal precepts is palpable from his actions. Having
been judge for twenty-three (23) years, he should have appreciated by now that no
_______________
54 Agcaoili v. Government Service Insurance System, No. L-30056, 30 August
1988, 165 SCRA 1, quoting Air Manila, Inc. v. Court of Industrial Relations, 83
SCRA 579, 589 (1978).
55 Armamento v. Guerrero, No. L-34228, 21 February 1980, 96 SCRA 178,
citations omitted.
517
VOL. 387, AUGUST 21, 2002 517
Poso vs. Mijares
position in government service exacts greater demand on honesty and integrity
upon the individual than a seat in the judiciary. He should have taken this lesson
to heart if not for the fact of his status as judge then for the consideration that a
previous administrative case had once been decided against him.
WHEREFORE, the Court finds respondent JUDGE JOSE H. MIJARES,
detailed to RTC-Br. 21, Laoang, Northern Samar, with permanent station at RTC-
Br. 26, San Juan, Southern Leyte, guilty of Gross Dishonesty for foisting upon this
Court a fraudulent copy of his 10 January 1996 Resolution, or otherwise, of Gross
Inexcusable Negligence for allowing a draft of his 10 January 1996 Resolution to
circulate freely and unhampered, in violation of the rule of strict confidentiality,
and of Gross Ignorance of the Law, Knowingly Issuing Unjust Orders and
Commission of Acts punishable under Sec. 3, par. (e) of RA 3019, otherwise known
as the Anti-Graft and Corrupt Practices Act, as amended, as a result of his actions
in Crim. Case No. 2477 entitled, “People v. Virgilio de Guia” for lowering the
penalty upon the accused to absurd limits in order that the latter may avail of, as
he was indeed granted, temporary liberty on recognizance and thereafter
probation.
Consequently, JUDGE JOSE H. MIJARES is ordered DISMISSED from the
service effective immediately with prejudice to re-employment in any branch or
instrumentality of the government including government-owned or controlled
corporations, with forfeiture of all his retirement benefits, except the value of his
CRIMINAL LAW | PENALTIES
earned leave credits which he shall be paid in full. He is further ordered to
IMMEDIATELY CEASE AND DESIST from discharging the functions of the office
from which he is removed. Moreover, RTC-Br. 21, Laoang, Northern Samar, in
connection with Crim. Case No. 2477, is directed to ORDER THE ARREST of
accused Virgilio de Guia in order to restore the status quo ante prior to his release
on recognizance. Forthwith the trial court shall CALL A HEARING for the sole
purpose of affording the accused and the prosecution an opportunity to present
evidence proving mitigating or aggravating circumstances as the case may be. The
trial court shall then REPROMULGATE JUDGMENT in Crim. Case No. 2477
paying particular attention to the proper application of the Indeterminate Sentence
Law and the plea of guilty of the accused to homicide. The Administrative
Complaint against respondent Judge for conceal-
518
518 SUPREME COURT REPORTS ANNOTATED
Poso vs. Mijares
ment of documents, and against respondent Flor Serio, OIC Clerk of Court, RTC,
Northern Samar, for concealment of documents and conspiracy to commit the
foregoing acts is DISMISSED for lack of merit.
SO ORDERED.
Bellosillo (Acting
C.J.), Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-
Santiago, Carpio, Austria-Martinez and Corona, JJ., concur.
Davide, Jr, (C.J.), On official leave.
Sandoval-Gutierrez, J., On leave.
Respondent Judge Jose H. Mijares dismissed from the service. Complaint for
concealment of documents dismissed.
Notes.—The judicial gavel should not be wielded by one who has an unsound
and distorted sense of justice and fairness. (Tabao vs. Espina, 257 SCRA
298 [1996])
That a judge has not been penalized for any other injudicious deeds and has no
other pending administrative complaints against him cannot be a counterbalance
for his gross misconduct over the years—a judge, after all, is expected to comport
himself as befits a man of law and a dispenser of justice and he cannot point to his
supposedly previous faultless record to offset the gravity of even a single but
enormous failing. (Abarquez vs. Rebosura, 285 SCRA 109 [1998])
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